San Jose Divorce Attorney

Divorce is a serious time in anyone's life and should be approached with sensitivity. It involves not just the end of a marriage but the division of shared assets, arrangements for child custody and ongoing responsibilities for child support. If you find yourself going through a divorce it's crucial to seek guidance from a San Jose Divorce Attorney as early as possible, to ensure that your family's best interests are protected.

Many people enter into marriage with the belief that it will last forever. Marriage is not just a romantic connection but also a way to create stability for children and establish an economic partnership. Unfortunately, despite the intention of commitment, statistics show that nearly half of all marriages ultimately result in divorce.

Divorce in California

Divorce according to Black's Law Dictionary refers to the process of ending a marriage as decided by a court. This definition applies to California well where divorce dissolves the bond and returns the parties to their unmarried status, under the courts authority. In states like California, "no fault" divorce is recognized, which means that one can seek divorce or separation without having to prove fault on either spouses part. Typically divorces are based on "differences," although they can also be sought due to "legal incapacity to make decisions." If the marriage took place outside of California at least one spouse must have been a resident of California (and the relevant county) for at least six months before filing for divorce in the state.

The process of initiating a divorce often involves filing a petition that outlines details about the marriage, such as its date. Whether there are children involved or not, in situations where there is a chance for reconciliation (thus not satisfying differences) the court may decide to pause proceedings for up to 30 days. In scenarios like when there are no children from the marriage, the marriage lasted more than 5 years, and neither spouse has any ownership in real estate the marriage can be legally ended through a simplified process called summary dissolution. However, it's important to note that this method entails waivers, including giving up any entitlement to spousal support.

While the Supreme Court's recent decision in Obergefell v. Hodges legalized same-sex marriage nationwide, including in California, same-sex couples still unfortunately face similar challenges when marriages break down. They must undergo divorce proceedings similar to those of heterosexual couples.


Aeschleman Law, located in San Jose, California specializes in offering tailored divorce services across Santa Clara, Alameda, and San Mateo Counties. Whether you’re dealing with divorce, child custody, family support matters, or the creation of prenuptial or postnuptial agreements our team of San Jose divorce attorneys is ready to assist. To arrange a consultation, please contact us at 408-724-8930 or complete the form at the bottom of this website.

Client Testimonials

View More Testimonials

Meet The Aeschleman Team

Nicole Aeschleman

Managing Partner

Michael L. McDougall

Senior Associate Attorney

Wendy Andham

Certified Paralegal

Wendy Alvarez


Katharine French


San Jose Divorce Lawyers


At Aeschleman Law, our knowledgeable divorce attorneys recognize that there is no one solution that fits all in divorce law. Our compassionate and skilled lawyers collaborate with clients to develop a strategy that addresses their immediate and future needs. We leverage alternative dispute resolution techniques and innovative settlement alternatives to achieve a positive outcome in your divorce case.

Void and Voidable Marriages

In limited circumstances, a marriage may be voided, rather than dissolved. However, a marriage may be voided only upon a finding by the court that the relationship was illegitimate, such as certain marriages between family members.

Legal Separation

Legal separation is another option for spouses seeking time apart without wishing to go through the finality of divorce. After the legal dissolution of marriage, spouses are returned to their “unmarried” status. However, legal separation offers spouses the opportunity to experiment with living apart and the division of assets. During a legal separation, both individuals will still be considered “married” and will be unable to remarry during this time. While a legal separation may still lead to the dissolution of marriage, this option allows couples more time to consider whether a divorce is what they truly want, rather than go through the administrative burden of a divorce.

Marital Property

One of the most important considerations during a divorce proceeding is the property acquired during the marriage. Property acquired during the marriage is presumed by the court to be community property, and thereby jointly held by both spouses. There are certain methods to overcome this presumption, such as through proof that the property was agreed to be separate property or was acquired as separate property.

The court often encourages both parties to come to an agreement regarding the division of the marital estate, often accomplished during mediation or arbitration. However, in situations where a divorce involves high net worth assets or a hotly contested divorce, the court may need to intervene to determine the most equitable division of assets. In determining the division of property, a court will often look to various factors, such as the grounds the divorce was brought on, and whether the marriage led to any children.

The division of marital property will often include division of assets such as retirement plans and other financial assets acquired during the marriage. It is important to consult with an experienced family law attorney during the dissolution of marriage to ensure you receive the assets you are entitled to receive under the agreement. Certain debts and liabilities, such as student loans and mortgages, must also be considered during the division of property and could play an important role through the dissolution of marriage.

Spousal Support

A provision for spousal support may also be written into the divorce agreement. However, spousal support is not automatically provided during and after the dissolution of marriage. In fact, it is the exception rather than the rule. However, in limited circumstances, one party to the divorce may request spousal support for a certain period of time. A judge will consider facts such as the length of the marriage, the earning capacity of the spouse requesting the spousal support, whether any children were the product of the marriage, and the age and health of both spouses. If you believe you are entitled to receive spousal support due to the conditions of your marriage, make sure that this is part of the divorce agreement and is considered during negotiations.

Child Custody

Arguably the most important factor in any divorce or legal separation that involves children from the marriage is the issue of child custody. Child custody agreements must be carefully considered during the course of the divorce negotiations, and it is often suggested that both spouses work together to come up with their own child custody agreement, rather than leaving it up to the court to determine the best options. California offers parents the option of joint custody or sole custody.

During the determination of custody, the court will look into what is in the “best interest of the child.” This includes a review of the following:

  • History of abuse by either parent
  • The health, safety, and welfare of the child
  • Contact with both parents
  • Illegal drug use or alcohol abuse
  • One parent’s new spouse or roommate, especially in situations where that individual has a criminal background

Courts will also consider the wishes of the child if the child is of an appropriate age to make such a decision. After its consideration, the court will make its decision in writing, declaring whether the parents will enjoy joint custody or one parent will be awarded sole custody. However, if the parents make the determination without the use of the court, they will be entitled to determine the appropriate custody arrangement without court intervention.

Child Support

Closely following the determination of child custody is the issue of child support. The primary caretaker of the child, even in joint custody arrangements, will often receive a monthly payment from the other parent which covers the basic needs of the child. Child support obligations remain in place until the child reaches the age of 19 years or completes high school. However, some child support agreements provide additional support beyond that required under California law.

The court will consider the following in setting up court-mandated child support:

  • Both parents’ income and level of responsibility for the children
  • Children’s interest
  • The children’s current standard of living

The California uniform guidelines for child support follow a formula based on a calculation of the following:

  • The amount of both parents’ income to be allotted for child support under a state-mandated formula
  • A high earner’s net monthly disposable income
  • The percentage that the high earner will have primary physical responsibility of the child
  • The total monthly disposable income of both parties

The amount of child support from the parents’ income which is allotted toward child support is based on the total net disposable income in ranges from:

  • $0-$800,
  • $801-$6,666,
  • $6,667-$10,000, and
  • Greater than $10,000.

The number of children will also impact the monthly child support in the amount of set percentage. The child support may be raised or lowered depending on the income of the parent, and may be modified in certain circumstances. However, a court may only look at the income of the parent, and not the income of a new spouse.

If the parent who pays monthly child support loses their job, modification of the child support agreement is often necessary to keep up with payments. Child support may also be modified if the child’s ongoing monthly expenses change, depending on the type of expense. Parents who closely share ongoing decisions regarding the child are often more agreeable to amending a child support agreement.

After any divorce, it is important for the parents to maintain an amicable relationship to ease the transition for the children. The child custody agreements and child custody agreements do not need to be mandated by a court, but instead can be agreed to by both parties through mediation or other negotiations, saving both parties the cost of court. An experienced family law attorney will be able to advise you on the best options available given your unique situation and will assist you in securing an agreement that provides you with ongoing access to your children.

Aeschleman Law | Contact a San Jose Divorce Attorney Today

Divorce requires married individuals to carefully examine all aspects of their married life, including their assets and any children of the marriage. The California Family Code has provided an easy blueprint for courts to follow in instituting divorce agreements, spousal support agreements, child custody agreements, and child support agreements. However, the experienced San Jose Divorce Attorneys at Aeschleman Law can help ease parties into this transition through the use of mediation. The dissolution of marriage is a traumatic time for any couple and represents the ending of years of commitments, which is often sometimes difficult to go through on your own. Contact our attorneys for extremely family-focused representation. We work closely with you to examine your assets and the best child custody arrangements to keep you involved in your children’s lives.

Legal Memberships and Awards