San Jose Divorce Lawyers

It can be daunting to face the prospect of ending your marriage. However, understanding several of the key issues that may come up can take some of the stress out of the process. While you should eventually talk to a lawyer, here's a basic overview of divorce law in California.

Like many other states, California won't allow its courts to resolve your divorce unless you meet the residency requirement. At least one spouse must have lived in the state for at least six months before filing. There's also a three-month residency requirement for the county where you choose to get divorced.

Some states allow a spouse to pursue a "fault" divorce based on misconduct by the other spouse. California has essentially done away with this type of divorce. Most people pursue a divorce based on "irreconcilable differences" that have caused the marriage to break down beyond repair. In rare cases, a California resident might get a divorce if they can show that their spouse has a permanent legal incapacity to make decisions.

While there aren't many different grounds for divorce in California, the process can unfold differently depending on whether the divorce is contested or uncontested. If the spouses can't agree on some or all of the issues in their divorce, this is considered a contested divorce. A judge will need to decide these issues for them. If the spouses agree on everything, they can get an uncontested divorce. This involves putting together an agreement and asking the judge to approve it. An uncontested divorce tends to be cheaper and more efficient, but sometimes it's simply impossible to reach a compromise.

If the spouses meet certain requirements, they might be able to get an even more efficient type of divorce called a summary dissolution. You can only use this process if you don't have any kids together, you don't own any real estate, and you haven't been married for five years or longer, among other criteria.

Two ways to potentially make the divorce process smoother are mediation and collaborative divorce. In mediation, you'll discuss your situation with a neutral third party. This mediator will try to help you reach a compromise with your spouse that you can turn into an agreement. In a collaborative divorce, the spouses each get an attorney on their side and then work with the attorneys in trying to resolve any disputed issues. While this is more formal than mediation, it still can be much faster and less stressful than going through a contested divorce.

Unlike the majority of other states, California uses a community property system. When your spouse or you earn income or get property during your marriage, both of you are treated as owning it. California law generally requires a judge to divide this community property 50/50 if you get divorced. However, a judge will enforce a premarital agreement that provides for a different division of property, unless they decide that the agreement isn't valid.

Property that you brought into the marriage is considered separate property. You will keep this property after your divorce. A few types of assets that one spouse acquired during the marriage are also technically considered separate property. For example, this generally includes a gift that a spouse got from a friend or an inheritance from a parent.

When a couple gets divorced, one spouse may need to pay support to the other spouse. This was formerly known as "alimony," but California now calls it "spousal support." The amount and duration of spousal support should be fair and reasonable when considering the standard of living that the couple enjoyed during the marriage.

A judge will consider many factors when ordering spousal support, such as:

• How long the marriage lasted
• The age and health of the spouses
• The needs of each spouse, based on the standard of living during the marriage
• The extent to which the earning capacity of each spouse will allow them to maintain the standard of living during the marriage
• The ability of the supporting spouse to pay support
• Property and debts of each spouse
• Any contributions by the spouse getting support to the education or career of the supporting spouse
• Any record of domestic violence between the spouses, or by one of them against a child of either of them
• The impact of tax laws

California also allows a judge to consider issues that are not specifically listed in the law if this would be fair under the circumstances.

If you're going through a divorce when your children are still minors, one of the key issues will be who gets custody of the kids. You'll want to be familiar with two concepts involving custody. First, physical custody describes where the child lives most of the time. Second, legal custody involves the right of a parent to make decisions affecting the child's upbringing, such as where they go to school, which religion they practice, and which types of medical treatment are authorized. Parents often share both physical and legal custody, but sometimes it's better for one parent to have sole physical or sole legal custody, or both.

It's often best for the kids if the parents can put together a plan for custody on their own, rather than leaving it up to the court. If they can do this, the judge will assess whether the plan meets the best interests of the child or children. They'll approve the plan if it does. If the parents can't agree, the judge will issue an order according to their understanding of the child's best interests. Some of the factors that they'll consider include the child's age and health, the ability of each parent to care for the child, and the relationship of the child with each parent and their school, home, and community. A judge also will take any record of domestic violence or substance abuse into account if either of these issues exists.

A related issue is child support. California takes the usual "income shares" approach to child support. This considers the combined incomes of both parents, rather than just the income of the parent paying support. Like most states, California has developed specific guidelines for calculating child support. However, there might be some cases in which the result provided by the guidelines doesn't make sense, such as when the child would have far more support than what they would need or too little support to accommodate special needs. A judge can deviate from the standard formula in these cases. Parents also can agree on how much support should be paid and ask a judge to approve that arrangement.

The first step in the divorce process involves filling out a petition and a summons and submitting them to the court clerk. (You'll have an extra form to complete if you have kids under 18 with your spouse.) People filing a divorce petition usually will need to pay a fee to file their forms. If they're not able to afford the fee, though, they can ask for a waiver.

Then, you'll need to have the papers delivered to your spouse. This is officially called "service of process." Anyone who is 18 or older and not involved in your divorce case can deliver the papers. (In other words, you can't deliver them.) Many people use the county sheriff or a professional process server to make sure that the process goes smoothly. After they give the papers to your spouse, the server will need to fill out a form with information about the delivery. You can then file the form with the court. This starts a 30-day period during which your spouse can respond. If they don't respond within 30 days, you can ask the court for a default divorce. This means that the court can wrap up the case without your spouse's participation.

The process of finalizing a divorce depends on whether it's contested or uncontested. If your divorce is uncontested, meaning that you agree on all the terms, you can provide the court with the agreement that you've reached with your spouse. The judge will review it and likely approve it, making it an enforceable court order. On the other hand, if your divorce is contested, you'll need to have a trial or potentially a more limited hearing to resolve the issues where you disagree with your spouse.

In all divorce cases, there's a waiting period under state law. You can't get a divorce sooner than six months after the non-filing spouse has the divorce papers delivered to them.

Even if you're not expecting to fight your spouse tooth and nail, a divorce is often a complex and stressful process. If you live in San Jose or the surrounding areas, you might benefit from certain local resources, depending on your situation and needs.

The Superior Court in Santa Clara County, which includes San Jose, has an Office of Family Court Services that offers child custody mediation services to help parents work out a parenting plan that is in the best interests of their kids. Conversations between the parents and the mediator are kept confidential to protect privacy and encourage candor.

The Superior Court also has a Self-Help Center (Family Law Facilitator's Office) for people who are going through a divorce or another family law matter without an attorney. The staff at the Self-Help Center can answer questions about how the court process works, look at forms that a spouse plans to file in a case, and provide information and referrals to other organizations. However, you should be aware that the staff can't provide legal advice and don't serve as your attorney. You can get help through email, phone, or online chat, but generally not in person.

Unfortunately, sometimes a spouse going through a divorce has experienced domestic violence as part of the relationship. It can be hard to know where to turn in these situations while protecting your safety and the safety of any kids. However, the County of Santa Clara offers a list of resources, which include:

• AACI (Asian Americans for Community Involvement) Asian Women's Home
• Community Solutions (for people in South Santa Clara County)
• Family Justice Centers
• Maitri (primarily for people from South Asia)
• Next Door Solutions to Domestic Violence
• Safe Chat Silicon Valley (online chat)
• YWCA Silicon Valley

Resources may range from emergency hotlines and housing services to counseling and legal and financial assistance. Some organizations offer services tailored to children as well.

The Divorce Law Center in the Justia Legal Guides provides free information to people considering dissolving their marriage or already embarking on the process. It highlights many of the issues that may come up, describing them in readable language. The Divorce Law Center also offers 50-state surveys on various aspects of the law. You can take a look at California law regarding topics such as:

• Uncontested divorce
• Property division
• Spousal support (alimony)
• Child custody
• Child support

If you have a specific question about an issue in your divorce, you can go to the Justia Ask A Lawyer platform and ask for insights from California attorneys. This can give you a general sense of how the law views the issue and how various divorce lawyers have seen it handled. Be aware that asking and answering a question on Justia Ask A Lawyer doesn't create an attorney-client relationship and its related duties.

Once you reach a stage where you want to hire an attorney, you can explore the Justia Lawyer Directory to see the options in San Jose or Santa Clara County more generally. It's an efficient way to compare the numerous attorneys in this area and see who might best suit your needs.

Divorce cases in San Jose are heard in the Family Law Division of the Santa Clara County Superior Court. This is located in the Family Justice Center Courthouse at 201 North First Street. (However, the mailing address is 191 North First Street.) Departments 64-66 and 70-79 handle family law cases. The courthouse building is open from 8 AM to 5 PM Monday through Friday. You can call the clerk's office at 408-534-5711.

Divorce often entails significant difficulties, particularly when emotions run high. Having dedicated legal counsel can substantially influence the outcome. An attorney can gather vital evidence—such as financial records or witness statements—and craft persuasive legal arguments on your behalf. They also manage deadlines, oversee essential procedures, and handle all necessary documents to keep your case moving efficiently. Thanks to their familiarity with local courts and judges, they can offer invaluable insights. If they have argued before the same judge in the past, they may anticipate preferences or tendencies that could lead to a more favorable outcome for you.

Even if your spouse and you expect a peaceful resolution, a lawyer's involvement can be beneficial during negotiations. They can carefully review proposed agreements, confirm that you fully understand each term, and ensure that your rights remain protected. Their presence can also boost your bargaining power, prompting your spouse to be more accommodating in discussions because you've shown that you are committed to defending your interests.

If your spouse and you agree on all major points from the start, it might seem like you do not need legal help. However, it is still prudent to have an attorney review your arrangement before it reaches the judge. They can identify overlooked concerns—such as unanticipated taxes or ambiguous language—and advise on how to address anything that could delay court approval. Their objective outlook keeps the agreement fair and safeguards your long-term interests.

Identifying a dependable divorce attorney in the San Jose area can feel overwhelming, given the abundance of lawyers available. Each practitioner has a distinct style and skill set, so make sure you choose one well-suited to your unique concerns.

Experience is crucial. Seek out someone with a consistent record of handling cases that parallel yours. For instance, if your case involves a dispute regarding the validity of a prenuptial agreement, you might lean toward an attorney who has dealt with similar situations.

It's wise to read former clients' reviews of an attorney, since they often reveal how well the attorney meets clients' needs and expectations. Reviews from other legal professionals can further highlight a lawyer's reputation within the broader legal community.

Ethical standards are equally important. Although a lone minor infraction from the distant past may not by itself exclude a lawyer from consideration, repeated violations or a serious ethical breach should prompt caution. You are putting a crucial part of your life in this person's hands, so you need confidence in their integrity.

A majority of divorce attorneys offer initial consultations, which create an opportunity to explain your case and assess whether a particular lawyer is a good fit. It's often best to speak with multiple lawyers so that you can evaluate differences in both how they see your case and how they relate to you. Pick someone you trust to advocate effectively for you—and don't hurry this decision. It's one of the most critical choices you'll face as you navigate your divorce.

1. Will our property get divided 50/50 in the divorce?

   Property that either of you earned or acquired during your marriage (with a few exceptions) probably will get split 50/50 in your divorce. Each of you will keep your separate property, which mostly consists of what you had before your marriage. However, if you made a prenuptial agreement describing how your property will be divided in a divorce, that will probably control what happens unless a judge decides that the agreement isn't enforceable.

2. How do fees for divorce attorneys work?

   Most divorce attorneys charge hourly fees for their services. This means that a case that requires more of their time probably will result in a bigger bill. (It's one reason why contested divorces tend to be more expensive than uncontested divorces.) However, if you want an attorney to just do one simple task for you, or your divorce is very streamlined, you might be able to pay them a flat fee for everything.

3. Can I use the same lawyer as my spouse?

   You generally can't use the same lawyer as your spouse. It might seem like a good way to cut costs, but this creates a conflict of interest because your spouse and you are technically adverse parties, even if your divorce is uncontested.

4. Can our child decide where they want to live?

   A judge will take your child's preferences about custody or visitation into account if they're old enough and mature enough to express an intelligent preference. However, this doesn't mean that your child can simply decide where they want to live. A judge will make a custody decision based on a child's overall best interests.

5. Can you get a legal separation in California?

   Yes, California allows for a legal separation. The process is very similar to divorce, potentially involving issues such as property division, child custody, and child and spousal support. Legal separation may be attractive for certain religious or financial reasons. However, you can't get married again unless you get a divorce.