SAN JOSE DIVORCE ATTORNEY

Divorce in California

Divorce, as defined by Black’s Law Dictionary, is the legal separation of a married couple, affected by the judgment of a court. This definition is no different in California, whereby the dissolution of marriage restores the parties to the state of unmarried persons, effectuated by a court. California, like most states, has adopted “no-fault” divorce, meaning that a married individual may request a divorce or separation without proving wrongdoing by either spouse. Typically, a divorce will be brought on the grounds of “irreconcilable differences,” although a divorce may also be brought on the grounds of “permanent legal incapacity to make decisions.” If the marriage was not entered into in California, one spouse must be a resident of California (and the relevant county) for at least six months prior to bringing a claim for the dissolution of marriage in the state of California.

A proceeding for divorce is often begun through the filing of a divorce petition which states the relevant facts of the marriage, such as the date of marriage and the number of children from the marriage. If a court determines that there is a reasonable possibility of reconciliation (thereby not finding irreconcilable differences), the court may continue the proceeding for a period of up to 30 days. In certain situations, such as where there are no children of the marriage, the marriage was not longer than 5 years, and neither spouse has an interest in real property, the marriage may be dissolved by summary dissolution. However, this comes with various waivers, such as any right to spousal support.

UNLIKE OTHER SAN JOSE DIVORCE FIRMS

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.