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Family Law FAQ

Knowledgeable San Jose Divorce Lawyers

At Magdalena Law Group, we strive to deliver informative counsel every step of the way for our clients. We want to empower you with knowledge and help you make the best decisions possible for your future. Below you can find answers to some common questions that our clients often have. If you have a question that was not addressed below, feel free to contact our team for answers.

Do I need an attorney to divorce?

You are not required to have one, but it is recommended that you have an attorney guide you through your divorce proceedings, especially if you are dealing with a complex, contested divorce such as those that involve high assets or child custody and domestic abuse. An attorney is more informed about divorce laws and how they are applied, can offer effective solutions to resolve your conflict in a fair and balanced manner, and finalize your case as efficiently as possible.

How is property divided in a divorce?

California divides property using the community property model. This means that marital property, that was acquired from the date of marriage to the date of separation, is generally divided equally between the spouses. Marital property generally includes any earnings accumulated during the marriage, real properties purchased during the marriage, vehicles and boats, bank accounts, investment accounts, retirement, interests in businesses, interests in stock options, restricted stock units ("RSUs"), employee stock purchase plans ("ESPPs"), income from patents, frequent flyer miles, and other assets or properties accumulated in a marriage. Each spouse typically gets to keep his or her separate property that was acquired before the date of marriage, after the date of separation, through gift or inheritance given to only one spouse, or by using separate property income. Of course, there are exceptions to these rules and you should consult one of our experienced family law attorneys to get individualized legal advice that is specific to your situation.

Property division is often one of the most challenging topics in a divorce, as couples tend to disagree on what is considered marital and separate property. In cases where couples are dealing with significant assets and properties, it is important to consult an attorney. Even if you do agree on how to divide your property, it is crucial to get your Marital Settlement Agreement drafted by a professional to avoid disputes down the road.

Can a custodial parent deny the non-custodial parent visitation?

Frequent and continuing contact with a child is generally desired for the child's parents as long as the parents are "fit" to care for the child. Visitation rights are frequently subject to court orders. If a parent denies another parent visitation pursuant to a court order in place, then this constitutes a violation of a court order, which may be punishable by civil penalties, criminal penalties, or both. If the other parent is blocking your access to your child, a lawyer can assist you with enforcing the order.

I’ve been accused of domestic violence. How does this affect my divorce?

Evidence of family violence or abuse can have an impact on decisions regarding child custody, child support, and spousal support. Courts take domestic violence seriously and will heavily consider these factors when making decisions in order to promote the safety and interests of a child and spouse. If you have been wrongfully accused of domestic abuse, you should immediately consult an attorney as these serious allegations have real-life implications not only in family court but also may result in negative criminal or immigration consequences. If you are a victim of domestic abuse (physical, emotional, or financial), you should seek legal advice to explore your options for protecting your and your children's safety, obtaining a restraining order, and securing custody and support orders to ensure you and your children are protected.

Will I have to pay or receive alimony or spousal support?

California courts can make temporary or permanent orders for spousal support (also sometimes referred to as "alimony" or "maintenance"). Spousal support is determined by many factors, such the spouses' respective incomes or earning potential if one spouse is voluntarily unemployed or underemployed, the length of the marriage, contributions a spouse made towards the education or professional development of the other, each spouse's physical, domestic violence, and other factors. To find out how the spousal support laws impact your particular situation, you should consult one of our experienced family law attorneys.

I can’t pay child support. Can I modify it?

Even if you experienced a drastic change in your financial circumstances, such as a job loss or a severe illness, child support does not get automatically changed and you must file a Request for Order with the court to modify the support. The court will consider your reason for modification and whether it justifies a change in the child support amount. You should never skip out on child support payments or refuse to pay. An attorney can help you with your modification petition and present a convincing case to the court.

Is mediation right for me?

Mediation can be beneficial in cases where couples do not want a long, drawn-out court battle, which can be costly. Mediation is facilitated by a neutral third party who guides the discussion towards solutions that both parties can agree on. Mediation is confidential and may be a good, less hostile alternative to litigation in situations where both spouses are transparent about their finances and can civilly and peacefully negotiate a resolution of all issues in their divorce. Mediation is typically not advised in situations involving domestic violence or where only one spouse had management and control over the family finances and is not forthcoming with all of the financial information. You should consult an attorney to discuss your specific situation and what strategy is best for your case.

If you have additional questions for our attorneys, call us at (408) 601-4439 or schedule a consultation online.

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