San Jose Divorce Lawyer

Furthering Your Goals

For many spouses and parents, getting a divorce or handling other family law matters like child custody or support issues can be a source of stress. People care deeply about their families and the future of their loved ones. To protect them, you need to retain the services of an attorney who understands how much is at stake. Elainie Honjas is an experienced family law attorney who may be able to help you with a wide range of legal concerns. She has represented people in many Bay Area communities for the last 29 years.

Divorce

In California, you can obtain a no-fault divorce from your spouse based on irreconcilable differences. You must have lived in California for at least six months before filing for divorce in the state, and you must have lived in the county where the divorce case will be filed for at least the last three months. The spouse who is filing for divorce must serve the other spouse with a copy of the petition for dissolution of marriage after filing it in the Superior Court of the county where either spouse has lived for the last three months. Once the divorce papers are filed, you must wait at least six months for the divorce to be finalized.

Legal Separation

Some spouses prefer to get a separation rather than go through a divorce. In some instances, it is because they hope that they will reconcile eventually. In other cases, spouses may wish to maintain their legal status because of health insurance or immigration-related reasons. A legal separation is not the same as a divorce, but separation agreements that are negotiated as part of a legal settlement can have an impact on the terms of an eventual divorce, so it is important to retain a divorce attorney in San Jose for the separation as well. The spouses remain married and cannot marry other people after obtaining a legal separation.

Annulment

You can obtain a court-approved annulment so that it is as if you never married and your marriage is invalidated on certain grounds. Generally, whoever is seeking an annulment is required to establish the grounds. It is possible to obtain an annulment based on the other spouse's incurable physical disability or a spouse's unsound mind. It is also possible to obtain an annulment if the marriage was a result of fraud or force.

Domestic Partnerships

In California, domestic partnerships are governed by the California Family Code, starting with section 297. A domestic partnership is a legal relationship available to same-sex couples and to opposite-sex couples, assuming that at least one would-be partner is at least 62 years old.

Child Custody and Visitation

When determining custody and visitation for a child, California judges use the best interests of the child as the standard. There is no presumption in favor of the mother, and both parents have equal rights to custody. The court is supposed to be primarily interested in the welfare, safety, and health of the child and is supposed to remain aware that children are benefited by having frequent, continuing contact with both parents. A San Jose divorce attorney can help you ensure that the court takes your child’s best interests into account.

Child and Spousal Support

Under California guidelines, the presumptive amount of child support is 40% of the paying parent's net monthly income, reduced by half of the recipient spouse's net monthly income. When ordering spousal support, the court must consider numerous factors, including the extent to which each spouse's earning ability is enough to maintain the marital standard of living. This also takes into account the marketable skills of the recipient, the contributions of the recipient to the supporting spouse, the ability to pay off the supporting spouse, how long the marriage lasted, the age and health of the spouses, tax consequences, and other issues.

International Child Abduction and Jurisdiction / Interstate Custody and Jurisdiction

Sometimes after a divorce a parent abducts a child and takes them out of the state or out of the country. The Hague Convention on the Civil Aspects of International Child Abduction is a treaty that was enacted to return kidnapped children to their home countries so that a court in the home country can issue or affirm a child custody order. In cases involving interstate child custody issues, the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) may apply.

Paternity

The identity of a child's father is assumed if a child is born during a marriage or if a man has been living with a child and mother in a family-like way and has demonstrated a commitment to the child. However, in other situations, paternity must be established through a Voluntary Declaration of Paternity or a paternity lawsuit. An experienced divorce attorney can guide San Jose residents through this process.

Domestic Violence

Domestic violence occurs when a certain familial or intimate relationship exists between a person being abused and the abuser. Abuse can include physically hurting somebody, and it can also include sexual assault, making serious threats, stalking, harassing, or destroying somebody else's personal property. Domestic violence can occur in both heterosexual and same-sex relationships. A victim may ask for a domestic violence order from the court if someone has abused them or threatened to abuse them, and they have a close relationship to that person. A close relationship can include a marriage, a registered domestic partnership, divorced or separated spouses, a date, people living together as more than roommates, or the relationship of people who parent a child together. It can also include grandparents, parents, children, siblings, and in-laws.

Complex Property Issues

California is a community property state. Any property or income that a spouse earned during the marriage is presumed to be community property. A spouse's separate property is whatever was acquired prior to the marriage or received during the marriage by a gift, bequest, or devise. During a divorce, the community property will be divided such that the net value of the assets received by each spouse is equal. However, each physical asset is not divided. For example, one spouse might keep the marital home, while the other spouse gets a vacation property and the family business. The key is that the division must be equal in value. Some divorces involve complex estates, such as a business in which a great deal of goodwill has built up, intellectual property, pensions, retirement accounts, and stocks. In such cases, it may be necessary for your San Jose divorce lawyer to hire a forensic accountant and other experts to trace and value the property.

Enforcements of Family Law Judgments and Orders

It can be challenging to enforce a family law judgment in California. In some cases, a spouse does not comply with a child support or alimony order. It is important to retain an attorney to enforce a divorce judgment. There may be enforcement terms set forth in a negotiated or mediated settlement agreement, and both spouses are supposed to follow those procedures to enforce the judgment.

Pre-Marital and Post-Marital Agreements

Some spouses agree about how their property will be distributed in the event of a divorce. An engaged couple can make a pre-marital agreement determining how the property will be characterized and how it will be divided. To be valid, this agreement must be in writing. These agreements are covered by the Uniform Premarital Agreement Act.

Guardianships of a Minor

A guardianship is a court-ordered arrangement whereby someone other than a child's parent gets custody of the child, manages the child's property, or both. In California, guardians can be grandparents, siblings, aunts, uncles, foster parents, friends, relatives, or others. The guardian usually decides where a child lives, makes medical decisions, chooses a child's school, obtains social services for a child, and provides financial support.

Conservatorships of the Person

Conservatorships are court cases in which a conservator is appointed to care for a disabled or incapacitated adult who is either unable to handle their own care or unable to take care of their own financial affairs. For example, if an adult child develops schizophrenia, the parents may become conservators so that they can help the child manage their money and daily living tasks that have become difficult.

Step-Parent Adoptions

In California, the Department of Social Services prefers that a step-parent be married for at least one year to the parent of the child before adopting them. Once the adoption takes place, the new parent-child relationship is permanent, and both parents have equal financial and other obligations to the child. This means that if a couple gets divorced post-adoption, the adoptive step-parent will still have rights and obligations toward the child.

Mediation

Often, divorces move beyond direct negotiations between spouses' attorneys to mediation. Mediation is a process in which settlement negotiations between the parties are facilitated by a neutral third party, known as a mediator. The mediator moves between the parties, showing them the potential strengths and weaknesses of their case and discussing the applicable law to help them get to an agreement that neither party may find perfect but both find acceptable.

Consult a Knowledgeable Divorce Attorney in San Jose or Surrounding Cities

If you need help with a family law matter in or around San Jose, you should not hesitate to contact Elainie Honjas, Attorney at Law. She also represents people in Santa Clara, Palo Alto, Redwood City, San Mateo, Fremont, Hayward, Berkeley, and Oakland, among other Bay Area cities. Call us at 408.292.4849 or complete our online form for a free consultation.