San Jose Divorce Lawyers

At Argyris Mah, LLP, our goal is to guide family law litigants through the legal process as smoothly and efficiently as possible, with the understanding that court proceedings can be stressful and emotionally draining. We carefully analyze each case in order to determine the best strategy to protect our client’s interests. While we believe that reaching settlement in family law cases is the most desirous result for all parties involved the majority of the time, should litigation become necessary, we are willing and ready to advocate aggressively for our client’s in court. We understand that litigation can be costly and as such, we work as efficiently as possible and will not do any unnecessary work on clients’ cases, nor will be proceed with any task without the full input and agreement of our client.

Divorce: Once you have made the decision to obtain a dissolution of your marriage, more commonly known as a “divorce,” it can be difficult to determine what your first and subsequent steps should be. In California, and in each county within the State, there are specific laws, rules and procedures surrounding the filing of a divorce case. It is often helpful to have a San Jose divorce attorney guide you through this process even if the issues in your case seem simple as any procedural mistakes could prevent you from obtaining a filed Judgment of Dissolution.

There are four main categories of issues which are normally addressed as part of a divorce case. These are (1) Property Division, (2) Child Custody and Visitation, (3) Child Support, and (4) Spousal Support. The payment of attorney fees and costs, either based on need, or as a sanction is also a common issue in divorce cases. You either need to reach agreements resolving all of these issues, or the court will need to make orders on each issue in as part of the divorce case. It is always beneficial to litigants to obtain legal advice prior to entering into agreements or proceeding to trial on the above issues in order to determine what your rights are.

Property Division: California is a community property state. This means that all property, including assets and debts, acquired from the date of marriage to the date of separation are presumed to be community in nature. As such, each party is entitled to half of the value of each item of property and is responsible for half of all debts accrued. Any property or debts owned by either party prior to marriage or acquired/incurred after the date of separation are presumed to be the separate property of the acquiring/incurring party. Such assets/debts are not subject to equal division and are most often confirmed to the separate property claimant. Per California law, some community property assets may have a separate property component, due to separate property contributions or commingling of community property and separate property. The division of property can be complicated and often experts are needed to conduct tracings and accountings.

Custody and Visitation: We always tell our clients that California is a very “pro” 50/50 state. This means that unless there is a threat to the health, safety or welfare of a child, divorced or separated parents in California and in Santa Clara County in particular, most often share custody of their children. This is because pursuant to California law, children have a right to frequent and continuous contact with both parents. Santa Clara County and most other counties require litigants to participate in Mediation prior to having a judge make a decision regarding custody and visitation. The reasoning behind the Mediation requirement is that the parents of a particular child are the best equipped to determine what is in the best interests of a child. Of course, in some cases, there are legitimate safety risks to a child posed by either or both parents. In such cases, the court must protect the child and make orders according to his/her best interests. Custody and visitation are often the most contested and litigious issues in a divorce case, given their emotional nature.

Child Support: California uses a statewide guideline calculator to determine child support. Child support is based on numerous factors, including each parent’s income, the timeshare each parent has with the children, payment of health insurance costs, contributions to retirement plans and tax deductions such as property tax payments and mortgage interest payments. Except in specific circumstances, as set forth in the California Family Code, the courts cannot deviate from the California guidelines. In addition to guideline child support, California law includes child care necessary for employment or employment related activities and uninsured health care costs and mandatory child support “add-ons.” The cost of extra-curricular activities are also often share equally between parents.

Spousal Support: There are two types of spousal support or “alimony” as it is also known. The first is temporary spousal support, which is payable during the divorce proceedings and is intended to maintain the supported party at the “status quo,” while the divorce is pending. The court has wide discretion in setting the amount of temporary spousal support based on the need of the supported party and the ability to pay of the supporting party. Often, the court will use the California child support guideline calculator to set temporary spousal support. At the end of each divorce case, the parties must agree on, or the court must set permanent spousal support. This is support that will be payable once the divorce is final. California Family Code Section 4320 sets forth the specific factors the court must consider in setting permanent spousal support. Spousal support is also often a highly contested issue, given the wide discretion that the court has in setting an amount and in determining the length of payment.

Attorney Fees and Costs: Per California law, a court may order one party to pay the other party’s attorney fees and costs if the requesting party can show that the other party has access to funds to pay and has the better ability to pay. The court may also order the payment of attorney fees and costs by one party as a sanction, for actions that unnecessarily increase the costs of litigation, or frustrate settlement.

At Argyris Mah, LLP, our San Jose divorce lawyers can guide you through your divorce, custody or support case and the court’s procedures, as well as provide you with sound legal advice regarding the specific issues in your case.