San Jose Divorce Attorney

Divorce is a significant event in anyone's life and requires careful handling. It entails more than just ending a marriage; it also involves dividing shared assets, arranging child custody, and managing ongoing child support responsibilities. If you are facing a divorce, it is essential to consult a San Jose Divorce Attorney early in the process to safeguard your family's best interests.

Many people enter marriage with the hope that it will last a lifetime. Marriage is not just a romantic bond but also a means to provide stability for children and establish an economic partnership. Unfortunately, despite these intentions, statistics reveal that nearly half of all marriages eventually end in divorce.

Divorce in California

According to Black's Law Dictionary, divorce is defined as the legal process of ending a marriage as determined by a court. This definition is applicable in California, where divorce dissolves the marital bond and restores the parties to their unmarried status under the court's authority. In California, a "no-fault" divorce system is recognized, allowing individuals to seek divorce or separation without needing to prove fault on the part of either spouse. Typically, divorces are based on "irreconcilable 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 a minimum of six months before filing for divorce in the state.

Initiating a divorce typically involves filing a petition that details aspects of the marriage, such as its date. If there are children involved or a possibility for reconciliation, the court may pause proceedings for up to 30 days. In cases where there are no children, the marriage lasted less than five years, and neither spouse owns real estate, the marriage can be legally ended through a simplified process called summary dissolution. However, it is important to note that this method involves 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 face similar challenges when marriages break down. They must undergo divorce proceedings just like heterosexual couples


Aeschleman Law, based in San Jose, California, specializes in providing personalized divorce services throughout Santa Clara, Alameda, and San Mateo Counties. Whether you're facing divorce, child custody issues, family support matters, or the need to create prenuptial or postnuptial agreements, our team of San Jose divorce attorneys is here to help. To schedule a consultation, please call us at 408-724-8930 or fill out the form at the bottom of this website.

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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


Aeschleman Law stands out with our commitment to personalized legal solutions. Our experienced divorce attorneys understand that each case is unique and requires a tailored approach. We work closely with our clients to devise strategies that meet both their immediate and long-term needs. Utilizing alternative dispute resolution techniques and innovative settlement options, we strive to achieve the most favorable outcomes for our clients' divorce cases.

Void and Voidable Marriages

In limited circumstances, a marriage may be voided rather than dissolved. A marriage may be voided only upon a court's finding that the relationship was illegitimate, such as in cases of certain marriages between family members.

Legal Separation

Legal separation is an alternative for spouses seeking time apart without the finality of divorce. Unlike the legal dissolution of marriage, which returns spouses to their "unmarried" status, legal separation allows spouses to live apart and divide assets while still being considered "married." During this period, neither individual can remarry. Legal separation provides couples the opportunity to consider their future without the administrative burden of divorce, and it may still lead to the dissolution of marriage if they decide to proceed with a divorce later.

Marital Property

One of the most critical considerations during a divorce proceeding is the property acquired during the marriage. The court presumes that such property is community property, jointly held by both spouses. However, this presumption can be overcome through proof that the property was agreed to be separate or was acquired as separate property.

The court often encourages both parties to agree on the division of the marital estate, typically achieved during mediation or arbitration. In cases involving high net worth assets or a contested divorce, the court may need to intervene to determine an equitable division of assets. The court considers various factors, such as the grounds for the divorce and whether the marriage produced any children, in its decision-making process.

The division of marital property includes assets like retirement plans and other financial assets acquired during the marriage. Consulting with an experienced family law attorney is crucial to ensure you receive the assets you are entitled to under the agreement. Additionally, certain debts and liabilities, such as student loans and mortgages, must be considered during the division of property and can significantly impact the dissolution process.

Spousal Support

A provision for spousal support may be included in the divorce agreement, but it is not automatically granted during or after the dissolution of marriage. Spousal support is the exception rather than the rule. In certain circumstances, one party may request spousal support for a specific period. A judge will consider various factors, such as the length of the marriage, the earning capacity of the spouse requesting support, whether there are children from the marriage, and the age and health of both spouses. If you believe you are entitled to spousal support, ensure it is addressed in the divorce agreement and considered during negotiations.

Child Custody

Arguably the most important factor in any divorce or legal separation involving children is child custody.Child custody agreements must be carefully considered during divorce negotiations, and it is often suggested that both spouses collaborate to create their own agreement rather than leaving it to the court. California offers parents the options of joint custody or sole custody.

In determining custody, the court will consider what is in the "best interest of the child." This includes evaluating factors such as:

  • 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

The court will also consider the wishes of the child if the child is of an appropriate age to make such a decision. After consideration, the court will issue a written decision declaring whether the parents will have joint custody or if one parent will be awarded sole custody. However, if the parents reach an agreement independently, they can determine the custody arrangement without court intervention.

Child Support

Following the determination of child custody, the issue of child support is addressed. In many cases, the primary caretaker, even in joint custody situations, will receive monthly payments from the other parent to cover the child's essential needs. Child support generally continues until the child turns 19 or graduates from high school, whichever comes first. Additionally, some child support agreements may stipulate further financial support beyond the standard requirements set by 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 significantly affects the monthly child support amount, which is set as a percentage. Child support can be adjusted based on the parent's income and may be modified under certain conditions. However, the court will only consider the parent's income, not that of a new spouse.

If the parent responsible for paying child support loses their job, modifying the child support agreement is often necessary to maintain payments. Child support can also be adjusted if the child’s ongoing monthly expenses change, depending on the nature of the expenses. Parents who collaboratively make decisions regarding their child are generally more willing to amend a child support agreement.

After a divorce, it is crucial for parents to maintain an amicable relationship to ease the transition for their children. Child custody and support agreements do not need to be mandated by a court; instead, they can be mutually agreed upon through mediation or other negotiations, saving both parties court costs. An experienced family law attorney can advise you on the best options for your unique situation and help you secure an agreement that ensures ongoing access to your children.

Aeschleman Law | Contact a San Jose Divorce Attorney Today

Divorce requires individuals to carefully examine all aspects of their married life, including assets and any children from the marriage. The California Family Code provides a clear framework for courts to follow in establishing 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 this transition through mediation. The dissolution of marriage is a traumatic time for any couple, representing the end of years of commitments, which can be difficult to navigate alone.

Contact our attorneys for family-focused representation. We work closely with you to assess your assets and determine the best child custody arrangements to keep you involved in your children’s lives. At Aeschleman Law, we understand the emotional and financial complexities of divorce and are dedicated to providing compassionate and effective legal support to help you move forward with confidence.

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