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San Jose Divorce Lawyers Blog

Can I Ask for Sole Custody After My Divorce?

Whenever possible, San Jose divorce courts will award joint custody after a divorce. The court generally believes that children do best when both parents are allowed the chance to have a relationship with the children. It is possible for one parent to have sole custody, but you should expect joint legal custody in most circumstances.

For sole custody to be considered in the child’s best interests, you will need to prove that your spouse is an unsuitable parent. For example, your spouse’s history of past abuse or neglect would give the court ample reason to award sole custody. A history of domestic violence may also cause the court to limit a parent’s access to his or her children. Claims of abuse and/or neglect must be substantiated, however. False claims made for the purpose of obtaining sole custody can leave you open to serious legal penalties.

Sole custody can be awarded if your spouse is mentally ill and can not safely care for the child. Mental illnesses that would impact a parent’s ability to provide appropriate care include paranoid schizophrenia, bipolar disorder, dementia, or uncontrolled hallucinations. Depression or anxiety disorders being successfully controlled with medication would not qualify.

A drug or alcohol addiction that your spouse refuses to seek treatment for may be reason to seek full custody if you can provide proof of how the addiction has affected his or her ability to care for the child.

If your spouse has deliberately abandoned the child, sole custody should not be a problem. Abandonment includes refusing to provide financial support or physical care for the child, as well as not maintaining contact with the child for an extended period of time. Abandonment may be cause for permanent termination of parental rights under certain circumstances.

If you wish to seek sole custody of your child, it is best to hire a San Jose family law attorney with extensive experience in custody cases. Do not attempt to handle a custody dispute on your own. The laws regarding child custody can be quite complex, so it’s important to have someone on your side who can advocate for the best interests of you and your child.

Who Gets to Keep the House After the Divorce?

It’s natural to have strong feelings about the place where you and your spouse built your life together, but it’s important to think about the marital home objectively during a divorce in San Jose. It’s not smart to keep a home that you can’t afford on a long term basis. Property taxes, insurance, and maintenance expenses must all be handled as part of home ownership. Mortgage interest adds up over time. Managing these expenses on one income can be difficult, especially if you are accustomed to being part of a two income household. You do not want to become “house poor” after your divorce.

There are a few different ways that the division of the marital home is typically handled during a divorce.

  • If the couple has children, the house will often go to the custodial parent. Judges in Santa Clara County regularly consider the best interests of the children and the children’s need for continuity and a stable status quo supported by continuing to live in the family home. This option is most likely where the numbers make it possible, but the Court has jurisdiction to award a Deed of Trust to the out parent and allow the custodial parent to continue living in the home even when the numbers do not quite work.
  • If no children are involved and one spouse wants to keep the marital home, he or she will likely have to buy out the other spouse’s interest in the property. This can require an independent appraisal of the home to determine its worth and/or an agreement on its value.
  • Selling the marital home is another option, but this can be difficult in a poor real estate market. Sometimes, if spouses have a reasonably amicable relationship, they can continue to own the house jointly and rent it out until the market improves enough for them to sell.
  • Another option is to continue joint ownership, but to allow the children and the custodial parent to continue living in the home. Then, when the children are grown, the couple can sell the house and split the proceeds. An adjustment to the spousal and/or child support order(s) to reflect the out patent’s contribution of their part of the home may require some complicated math, but could be done.

Of course, while the Court is limited in its creativity in crafting a division of the marital assets the parties are free to agree to more creative things. For example, because retirement funds will normally be taxed when withdrawn in the future the Courts normally will not Order a direct set off of retirement funds against a different type of asset, like a home that might not be taxed upon a sale. The cliche is that the Courts will not trade apples for oranges.

The parties can agree to a swap of retirement funds for home equity. Regularly men are worried about losing his retirement, and women are worried about losing their home, so a form of emotional gravity can make this sort of swap more likely.  (NOTE: This counsel is aware that in the modern era of political correctness practically anything that that sounds like gender bias, sexism, and/or the pronouncement of a gender based stereotype could come under attack. At the same time; however, it is this counsel’s simple observation that men regularly fear/worry about the loss of their retirements, and women regularly fear/worry about the loss of their home. Those fears observed have in fact been most clearly pronounced in line with the suggested gender based variation. It is unfortunate that the object of blogging, the dissemination of ideas and the truth, will occasionally run directly into the sharpened teeth of misdirected political correctness. The facts as I have observed them are described above.)

An experienced Bay Area divorce lawyer can offer some guidance for how to handle the division of the marital home during your divorce. Your counsel will not make presuppositions about what you want or need, that is up to you. You should be careful to look over the numbers and your new budget before making decisions that could lead you into financial trouble later. You may also want to consider seeing a financial planner. A financial planner can provide expert guidance in the best way to divide assets after a divorce while also helping you develop a budget that will keep your post-divorce finances on solid ground.