Divorce Lawyer Santa Clara

San Jose Divorce AttorneyDivorce is an emotional time during anyone’s life and should be handled as such. Divorce involves not only the dissolution of the marriage, but also the separation of assets acquired during the marriage, child custody arrangements, and ongoing child support obligations. If you are going through a divorce, it is important to consult with an experienced San Jose Divorce Attorney as soon as possible to ensure you receive the representation you need to obtain the best possible outcome for your family.

Divorce in California

Divorce, as defined by Black’s Law Dictionary, is the legal separation of a married couple, effected 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 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.

The recent Supreme Court decision, Obergefell v. Hodges, legalized same-sex marriage throughout the United States, including California. However, same-sex couples also unfortunately experience the same dissolution of marriage in situations where the marriage does not work, and must also go through the same divorce proceedings as any other married couple.

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.

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