Divorce Lawyer in San Jose
San Jose Divorce Lawyer Ane Murphy is a Certified Specialist in Family Law by the California Board of Legal Specialization. We understand how difficult and often overwhelming a divorce can be. We are here to help our clients negotiate the complex legal and business decisions when they are dealing with the emotional trauma that sometimes accompanies a divorce. The Law Office of Ane Murphy serves clients in Santa Clara County and Santa Cruz County.
California is a no-fault divorce state. That means that either spouse may seek a divorce without proving the fault of either spouse. Either spouse may obtain a divorce without the permission of the other spouse. The only grounds for divorce in the State of California are irreconcilable differences and incurable insanity.
A divorce may be either an un-contested or no-contest divorce or a contested divorce. An un-contested or no-contest divorce occurs when both parties agree to the terms of their divorce. A contested divorce occurs when the parties cannot agree on one or more terms and the Court must intervene and resolve the dispute.
In order to file for divorce in California, you or your spouse must have been a resident of the State of California for six months prior to filing the Petition for Dissolution of Marriage and you or your spouse must have been a resident of the county that you are filing the petition in for at least three months prior to filing the petition.
If you wish to file your Petition for Dissolution of Marriage and have not met the above-described residency requirements you may file a Petition for Legal Separation and then later amend that Petition to a Petition for Dissolution of Marriage once you have met the residency requirements. Please see our webpage on Legal Separation for more information on that topic. For example if you live in Santa Cruz and move to San Jose which is located in Santa Clara County and wish to file for a divorce, you must either wait until you have lived in San Jose for three months, or you may immediately file a Petition for Legal Separation in the Santa Clara County Superior Court, and then three months later amend your Petition to a Petition for Dissolution of Marriage.
California also has a process known as a Joint Petition for Summary Dissolution of Marriage. The following conditions must be met:
- The Joint Petition for Summary Dissolution of Marriage is filed before the fifth year of marriage;
- There are no minor children of the marriage, and the wife is not pregnant;
- Neither party has an interest in real property anywhere, except a residence lease where one of the parties lives;
- The parties owe no more than $14,000 for debts incurred during marriage, except car loans;
- The total fair market value of community assets, not including what is owed on the assets, and not including automobiles, is less than $25,000;
- Neither party has separate assets, not including what is owed on the assets, and not including automobiles,in excess of $25,000; and
- Each party must waive spousal support.
If you do not meet these requirements you may not use the Summary Dissolution Process.
In order to obtain a Judgment of Dissolution of Marriage, in other words, divorce, the following issues must be resolved:
- Division of Community Property
- Division of Community Debts
- Custody and Visitation of Minor Children
- Child Support of Minor Children and Disabled Adult Children
- Spousal Support, also known as alimony
- The payment of Attorney’s fees and costs
- The payment of expert fees and costs, such as Accountants, Appraisers, Therapists, etc.
The soonest you may be divorced is six months and one day after the responding spouse has been served with the Petition for Dissolution and the Summons. Some divorces take much longer to resolve as the parties have complex legal issues that take time to resolve. Sometimes, parties are too emotionally overwhelmed to deal with the many issues that must be resolved with a divorce, and sometimes one party is simply difficult and seeks to delay the divorce. Sometimes a spouse may attempt to hide assets or hide income from their spouse. That is why it is important to have an experienced divorce attorney to assist you in moving your matter forward so that your rights are protected and you receive what you are entitled to.
The general steps for filing a divorce in California are:
- The Petition for Dissolution of marriage is filed by one spouse in the Superior Court of the County which they reside in. This party is known as the Petitioner.
- The Petition for Dissolution of Marriage and the Summons, is served on the other spouse informing them that the Petitioner is suing them for divorce. This spouse is known as the Respondent.
- The Respondent has 30 days from the date he or she was served with the Petition for Dissolution of Marriage and the Summons to file a Response to the Petition for Dissolution of Marriage, or the Petitioner may take a Default which means the Petitioner may request that the Court enter a Judgment granting the Petitioner’s requests set forth in the Petition for Dissolution of Marriage.
- If a default is taken against the Respondent it is imperative that he or she seek immediate legal advice to set aside the default so that the Respondent has the ability to set forth his or her legal claims in the divorce action. If a party fails to assert their legal claims they may end up waiving their legal rights under California law. Setting aside a default due to a late filing of a Response is a fairly straightforward action if the Respondent takes action in a timely manner.
- Each party is required to exchange Disclosures. California State law provides that both parties must make complete disclosure of all assets, debts and income, whether separate or community property. In fact if a party intentionally fails to disclose an asset in order to hide it from the other party, he or she may end up giving 100% of that asset to the party they hid it from, and they may also end paying the other party’s attorney’s fees and costs.
A Declaration of Disclosures consist of the following:
- A Declaration of Disclosure Form;
- An Income and Expense Declaration;
- A Schedule of Assets and Debts; and
- A Statement of Disclosure which is an accurate and complete written disclosure of any investment opportunity, business opportunity, or other income-producing opportunity presented since the date of separation.
- It is sometimes necessary to do discovery in addition to the Disclosures, such as written questions, demand for the production of documents, depositions, and issuing subpoenas to banks, financial institutions, employers etc. The goal of requiring each party to exchange Disclosures is to avoid costly Discovery, but that is not always possible. Furthermore, it is state law that each party must make full and complete disclosure or risk penalties, sanctions and loss of the non-disclosed asset.
- Once the Disclosures have been exchanged and all discovery completed the parties and their attorneys will discuss settlement of all terms. If settlement is reached a Marital Settlement Agreement or Stipulated Judgment will be prepared by one of the attorneys and signed by both parties and their attorneys. The Judgment will be submitted to the Judge for signature and filed with the court. If the parties do not agree a trial will be set on the disputed issues.
Contact us to schedule an initial consultation with Ane Murphy, a San Jose divorce attorney.