Frequently Asked Questions

Family issues are emotionally-charged events. Things like divorce, child support, asset allocation, domestic violence, and child custody can drastically impact your family’s future.

At Birdsong Legal Counsel, your family is our family. We know the importance of family and what that means for your life. We give each case the care and compassion that it deserves. As you provide for your family daily, we want to offer our services to you. Birdsong Legal Counsel works with a diverse team of mental health professionals, and counselors, that deliver results for favorable outcomes for our clients. With these skilled professionals, we can craft a rock-solid case for you to win in or out of court. – Read More

Birdsong Legal Counsel works with families to develop and implement lasting solutions to resolve conflicts. Through family law mediation, we work with clients dealing with relatives, fiancé (e) s, children of troubled relationships, domestic violence victims, and divorcing spouses.

Our expert family law attorney, child custody attorney, domestic violence attorney, civil litigation lawyer, or divorce lawyer has extensive knowledge from years of experience working with families near and in San Jose, CA. – Read More

California is a no-fault divorce state. A no-fault divorce is one in which neither party officially blames the other for the breakdown of the marriage. Common bases for no-fault divorce are “irreconcilable differences,” “irretrievable breakdown” or “incompatibility.” As such it is important to go into a divorce understanding that no matter what happened to cause the breakdown in the marriage the court is going to look for an equitable division of the marital estate. This means the court is not going to “punish” either party for their role in the divorce. When a marriage has ended in a rather contentious manner, having representation for the parties allows the focus of the divorce to be on the facts the court can provide assistance on (i.e. custody, spousal or child support and division of assets and debts). In keeping the focus on the legal aspects of a divorce, having representation can cut down on the amount a hearings a case may require to be resolved and the duration of time the divorce process takes.

Generally, spouses are free to divide their property as they see fit in what is called a “marital settlement agreement,” which is a contract between the husband and the wife that divides property and debts and resolves other issues of the divorce. Although many divorces begin with a high level of acrimony, a substantial majority are settled without the need for a judge to decide property or other issues. However, if the division of property cannot be settled, then the court must make the determination. As a starting point, courts allow both parties to keep their “nonmarital” or “separate” property.

In dividing marital or community property, California believes that marital property should be divided equally unless a premarital agreement specifies otherwise. That means that in general, with some exception, anything accrued or earned during the marriage is considered community property and will be divided equally, even if disproportionately earned by one spouse or the other. Parties can get creative in their equitable distribution choosing either in kind division (division each asset and debt in half) or awarding various assets and debts to each party to allow for an equal division of the marital assets and debts.

If the parents cannot agree on custody of their child, the courts decide custody based on “the best interests of the child.” Determining the child’s best interests involves many factors, no one of which is the most important factor.

Joint custody has two parts: joint legal custody and joint physical custody. A joint custody order can have one or both parts.

Joint legal custody refers to both parents sharing the major decisions affecting the child, which can include school, health care and religious training. Other considerations under these types of custody agreements can include: extracurricular activities, summer camp, age for dating or getting a job, and methods of discipline.

Joint physical custody refers to the time spent with each parent. The amount of time is flexible, and can range from a moderate period of time for one parent, such as every other weekend, to a child dividing the time equally between the two parents’ homes. In situations where the time spent with both parents will be divided equally, it helps if the parents live close to one another.