San Jose Family Law Attorney

San Jose Family Law Lawyer

Family law often comes with difficult legal, financial, and emotional challenges. At TDC Family Law, our San Jose family law attorney can work with you through sensitive issues like divorce, child custody, support, or mediation to ease the stress they cause.

Attorney Tracy Duell-Cazes is a Certified Family Law Specialist by the California State Bar’s California Board of Legal Specialization. Ms. Duell-Cazes has published and presented widely on family law and is dedicated to helping people move forward with their lives.

Trusted San Jose Divorce Lawyer

Divorce, or dissolution as it is often called under California law, is the legal process that formally ends a marriage. Since California is a community property state, most assets and debts acquired during the marriage will be divided equitably between the spouses. Separate property, such as pre-marital assets, gifts, inheritance, and earnings made post-separation, will go to the spouse who originally owned it.

Different Methods of Obtaining a Divorce

In San Jose and throughout California, there are several methods of obtaining a divorce. Because no two marriages are the same, the kind of divorce that will work in your situation will depend on which method most addresses the needs of your divorce. California is what is called a “no fault” divorce state. That means, if one party wants to be divorced, by claiming irreconcilable differences, the Court will grant that request. The other party does not have the right to object on this ground. The methods of obtaining a divorce are:

Contested Divorce

A contested divorce can occur when there is conflict or disagreement between the couple, and they cannot or will not agree on how to resolve the issues. This type usually has to be settled in court, including with the use of alternative dispute resolution programs through the court or privately.

Uncontested Divorce

An uncontested divorce happens when both spouses agree to their marriage’s dissolution and determine how to resolve property division, financial issues, child custody and support, and any other important decisions. This type is typically simpler and less expensive than a contested divorce.

Summary Dissolution or Simplified Divorce

Summary dissolution, sometimes called a simplified divorce, is an uncontested, no-fault divorce that is meant for short, uncomplicated marriages. The conditions are:

• There are no children.
• The marriage lasted less than five years.
• There is no jointly owned real estate.
• There will be no spousal support.
• There is less than $6,000 in shared debt.
• Neither of them has more than $40,000 in separate property.
• Less than $40,000 worth of joint assets were made during the marriage.

If a summary dissolution can apply in your case, the couple must represent themselves in court. However, it is important to consult with a divorce lawyer to ensure that you understand what you are entitled to before signing any official documents.

Mediated Divorce

A mediated divorce is when the couple works together with a third-party mediator to figure out the key divorce issues, such as child custody, parenting plans, and property division, outside of court. The mediator helps the spouses work out disagreements and conflicts. Mediation helps couples avoid court, allows them to make their own terms, and speeds up the process. This process is a confidential process. This means that anything said during Mediation cannot be used outside of Mediation. If Mediation is not successful you must start all over and anything discussed or agreed upon (that was not made into a court order or an agreed upon stipulation that can be used outside of Mediation) is treated as if it never occurred.

Collaborative Divorce

A collaborative divorce is when both spouses come together with their lawyers to reach a fair agreement that is mutually acceptable for both. If this cannot be done, the process is ended, and another type of divorce will be chosen. Part of the Collaborative Divorce process is that there is an agreement that should the case not be finished through this process, the Collaborative Attorneys’ services will be terminated. In that case, each party will need to obtain a new attorney to continue representing them to resolve the matter.

If you are unsure what type of divorce will work in your situation, reach out to our experienced family law office to learn more. We can help you decide which to pursue to achieve the most positive outcome.

Same-Sex Divorce

Same-sex couples are granted the same rights through marriage that heterosexual couples have, though they may face challenges unique to LGBTIQA+ couples. If they are parents, there might be difficulty fighting for child custody if they are not biologically related. If they were in a domestic partnership before their marriage was legal, this can cause issues during asset distribution.

TDC Family Law understands that the laws may not work in your favor as a same-sex couple, so we want to protect your rights and resolve your same-sex divorce equitably.

Other Issues Addressed in San Jose Family Court

Paternity

Establishing paternity is the process of determining the biological father of a child, which can impact child custody and support obligations. This can be done through a voluntary declaration of paternity upon the child’s birth, court orders, or genetic testing. Establishing paternity provides legal rights and protections for the child and father. It allows the child access to benefits like health insurance, inheritance, and Social Security. It also ensures that the father is involved with the child’s life.

There is also the same type of process for determining parentage when there are issues related to determining the biological or legal rights of a mother.

It is smart to hire a knowledgeable lawyer to help navigate paternity issues, as being granted or denied the rights and obligations of a parent can have life-long consequences.

Child Custody

During a divorce, one of the most contentious and important issues that needs to be resolved is child custody. California divides child custody into two categories: legal custody and physical custody. Legal custody is the right to make important decisions about the child’s life, like education and healthcare.

Physical custody determines where the child lives, and it can be granted as either sole or joint custody. Sole custody is where one parent has physical custody subject only to the right of visitation by the other parent, and joint custody is shared time with both parents.

California courts base child custody decisions on the interests of the child, weighing factors such as the child’s health, age, involvement with their community, and relationship with each parent.

Child Support

Child support is a monthly payment made from one parent to another to ensure that their children’s needs are met. In most cases, the non-custodial parent is the one making the payments to the custodial parent.

The amount they will pay is calculated using a formula. The court uses the formula and a computer support program to allocate the support responsibility between the parents to determine if a parent will be required to pay the other parent monthly child support so that they are both supporting the child according to their responsibilities. This takes into account the net monthly disposable income of both parents, their timeshare with the child, and a multiplier if there is more than one child. This is used to determine how much the noncustodial parent or the parent with a higher income will pay by taking a proportional percentage of their income.

Even after the court decides on the amount of child support that one parent will be paying, it can be modified if one parent’s circumstance changes, such as:

• Their income increases or decreases upon job changes.
• Custody or visitation terms change.
• Family size increases or decreases.
• One parent becomes disabled.
• One parent commits a crime and is incarcerated.
• One parent is deployed.
• Other similar situations arise.

Relocation or Move-Away

Relocation cases, often called “move-aways,” can be difficult when children are involved, especially if the parents have joint custody.

If a parent is looking to relocate with the child, they are required to get approval from the other parent and the court. If the other parent accepts, it moves on to the judge for approval. However, if the other parent does not accept, the matter will likely go through litigation.

This objecting parent must then prove why the child would be negatively impacted by the relocation, so substantial evidence is needed to support this claim. This can include impacts on the child’s stability, education, emotional and psychological well-being, parent-child relationship, quality of life, or support system. It could even be against the child’s wishes to relocate.

Nuptial Agreements

Nuptial agreements are legal agreements entered into by a couple either before or after they are married. These are called either prenuptial agreements (or prenup) or postnuptial agreements.

A prenuptial agreement comes before marriage and outlines each person’s property and financial entitlements if they decide to divorce. It must be in writing, done voluntarily, and created under full disclosure. A prenup can be a tool for couples to make decisions for their marriage without being subjected to California’s community property laws.

A postnuptial agreement outlines all the same issues as a prenup, but it comes after the marriage. Courts scrutinize postnups differently than prenups because they occur after the spouses gained the rights, duties and obligations of a marriage. Additionally, if the spouses have taken on different roles in the marriage, leaving one with less earning capacity and assets, the court may be wary of certain provisions in the agreement, based on each spouse’s circumstances at the time of their divorce.

Spousal Support or Alimony

Spousal support, commonly called “alimony,” is a form of financial support that is paid from one spouse to the other. Under California law, it can be temporary or permanent support.

Temporary spousal support is money paid during the divorce or legal separation proceedings to maintain the status quo pending resolution of the case. It is meant to address any financial gaps while upholding a fair standard of living if one spouse earns no income or a lower income. After the divorce is finalized, permanent (or judgment) spousal support, or lack thereof, is determined.

Permanent spousal support is ongoing support payments after the divorce. To determine if permanent spousal support should be made, the court will take into account various matters required under the judgment support sections of the Family Code. This includes the factors under Family Code section 4320, including, but not limited to the following:

• The marriage duration
• Their shared standard of living
• The financial needs and resources of either spouse
• What each spouse contributed to their marriage
• Employment and education history
• Age
• Health
• Whether one spouse committed domestic violence

Similar to child support, a request can be submitted to modify permanent spousal support, if it was not made non-modifiable by the judgment or final support order, if there has been a change in circumstances, like loss of employment, a new job, an increase in medical expenses, cost of living adjustments, and more.

How We Can Help You

Family law services are often intertwined due to the complexity and interconnection of our lives. Our team excels in guiding families to collaborative solutions outside the courtroom, but our firm is also skilled in strategic litigation to achieve your goals in court. When your future is at stake, an attorney with experience and knowledge is crucial.

FAQs for Family Law Attorneys

Q: Can Parental Rights Be Terminated in California?

A: Yes, parental rights can be terminated in California, either voluntarily or involuntarily. The grounds for an involuntary termination are:

• Parental abandonment
• Neglect or abuse
• Failure to support the child
• Mental illness or substance abuse
• Criminal activity
• The child’s placement in foster care for a long period

If parental rights are terminated, the parent loses all legal rights and responsibilities regarding their child and is no longer obligated to pay child support.

Q: How Is Property Divided in a California Divorce?

A: California courts recognize community and separate property types during a divorce. Since California is a community property state, all the assets and debts that spouses acquire or incur during their marriage are community property, including cars, houses, income, retirement benefits, and other assets. Each spouse will receive an equal share of the community property upon divorce.

Any separate property, meaning property acquired before the wedding date or after separation, along with inheritance and personal gifts during the marriage, will then belong to the spouse to whom it originally belonged.

Q: How Long Does a Divorce Take in California?

A: The time it takes for a divorce to be finalized in California will depend on each couple’s unique circumstances, such as significant amounts of property, child custody decisions, if there are disagreements, among other factors. The state also upholds a six-month waiting period before a final judgment can be entered for the termination of the status of the marriage. For uncontested divorces, it takes at least six months, and a contested divorce could take a year or more.

Q: What Is Family Law Mediation?

A: Family law mediation is meant to help divorcing couples resolve their disputes amicably and reach agreeable solutions on issues like child custody, support, spousal support, and property division. A neutral mediator is present to help with discussions, clarify issues, and guide the couple toward a resolution. It is usually voluntary but could be required before certain issues are brought to court. This process is confidential and privileged so that nothing discussed during Mediation can be used outside of the mediation process.

Q: How Much Does a Family Law Attorney Cost in California?

A: There is no exact cost for an attorney, and the fees will depend on their experience and reputation, the case complexity, and their location. To better understand the potential costs of a family attorney, we recommend that you discuss fees and billing structure upfront with your attorney, as this can help you avoid surprises later. Besides attorney’s fees, there will be court expenses and potential expert expenses to consider as well.

Contact TDC Family Law

At TDC Family Law, we are here to work with you through this often difficult time in your life and help you move forward smoothly and effectively. Contact us today so we can begin working to defend your rights and protect your interests in your family law matter.