Divorce

Going through a divorce can be one of the most stressful experiences a person can face, especially if there are heated disputes over issues such as child custody, child support, or property division. That is why having legal representation that is focused on a client’s best interests is so important. At F&R Law Group, our attorneys provide personal attention and dedicated counsel to our clients, helping them find reasonable and effective solutions to their divorce disputes.

Not all divorces are the same. For example, one couple may be able to peacefully dissolve their marriage and agree on all settlement terms such as spousal support, child custody, and property division. In other cases, spouses may be angry, hurt, and in strong disagreement over how matters should be resolved. The process will depend on the details of each client’s individual situation. Our San Jose attorneys are able to guide you through the  process regardless of the circumstances.

There are several types of divorce, including:

• Uncontested divorce – The spouses agree to all relevant aspects of the divorce, like child custody, support payments, and property division.
• Contested divorce – Both parties do not agree to the terms of the divorce. This can lead to complex legal issues that can still be settled.
• Summary dissolution – A quicker divorce that meets specific requirements including the no minor children, being married for five years or less, and other criteria.

There is also a residency requirement if you want to file for divorce in California, and Santa Clara County. This means that you or your spouse must live in California for at least six months before filing for divorce. You must also be a resident of Santa Clara County for at least three months to file for divorce through local courts.

The historic way to request a divorce required the spouse filing for divorce to provide a reason for the separation: a fault, such as adultery, abuse, or perhaps their spouse being imprisoned.

It is no longer required in the state of California for either party to provide a reason for divorce, other than having irreconcilable differences and wishing to separate. This is considered a “no-fault divorce”. California doesn’t even consider “faults” when deciding other issues such as property division, child custody, child support, spousal support, etc. 

One other reason a spouse can use to file for divorce is “mental incapacity”. However, this is a more complicated way to divorce as it requires a higher burden of proof. It is more common for spouses to file for a “no-fault” divorce.

To an extent, the length of a divorce is up to the couple separating. While it does take an average  of six months from the initial petition to the final judgment, the length of the divorce will be extended if the couple does not come to an amicable agreement. If a divorce cannot be resolved in an agreeable manner, then the case may have to go to trial. Minimally, the law does not permit a divorcing couple to be restored to the legal status of single any sooner than six months from the date the Petition is filed. 

While divorce is often a complicated process, the basic process in California is as follows:

• Filing for divorce – The Petitioner (the spouse who initially files for divorce) will submit a petition for divorce with the court.
• Summons and service – Along with the petition, the court will issue a summons, which notifies the Respondent (the other spouse) of the divorce. The Respondent must be served with copies of the initial divorce papers.
• Response – The Respondent will have 30 days to responds with his or her own petition for divorce.
• Temporary orders – The court might issue temporary orders regarding various matters related to the divorce such as child custody, child support, etc. These orders will be applicable during the process of the divorce, but can be changed in the final divorce orders.
• Information gathering – During this phase, each spouse will need to disclose their assets, debts, and other financially related matters. There will also be a Discovery process, which will be a time to gather information about each spouse that’s relevant to the divorce.
• Settlement or trial – If possible, the couple will work with their attorneys to come to a divorce settlement. If they’re not able to do this, then the divorce will be litigated in court and the judge will settle the divorce terms.