San Jose California Family Law Attorney, Los Gatos Divorce Mediation Lawyer

OBTAIN THE BEST RESULTS WITH AS LITTLE STRESS AND CONFLICT AS POSSIBLE

OBTAIN THE QUICKEST AND BEST RESULTS WITH THE LEAST POSSIBLE EXPENDITURE OF RESOURCES

Here at the Ventresca Law Firm, our goal is to provide quality legal assistance to our clients at a reasonable cost in a manner that will reduce stress and conflict to our clients and obtain the best results. As a skilled Los Gatos/ San Jose California Family Law Attorney with over 30 years of experience, I work with my clients to achieve the most successful client outcome without expending unnecessary time and money. I have a bachelor’s degree in psychology, as well as my degree in law, which assists me in dealing with your family law matters. We review all aspects of your case, including the psychological impact to you and your family, and refer you to other experts for support if necessary.

And as an experienced Family Law Attorney, I work hard to avoid unnecessary conflict in your case, knowing that the results I achieve for my clients will have a lasting impact for them and for their children. My preference as a Family Law Attorney is to avoid time consuming and costly family law court litigation by reaching the best outcome possible either though mediation or court litigation. If court litigation is necessary in your case, my previous trial experience optimize your results in court..

I provide legal guidance to clients throughout Northern California, including San Jose, Los Gatos, Cupertino, Saratoga and Campbell, who need assistance in the following areas:

Divorce Mediation or Litigation
Custody / Visitation
Domestic Violence
Alimony (spousal support)
Child Support
Assets / Stock Options
Restraining Orders
Pre Marital Agreements
Paternity

My commitment to my clients includes:

Giving each client the personal attention they deserve.
Explaining all options to help you make an informed decision.
Giving you as much time as you need to speak with me.
Keeping you informed about the status of your case.
Looking out for clients' immediate needs and long term interests.
Prompt return of phone calls.

Divorce Mediation:

The basic attitude marking Divorce Mediation is a focus on solving problems, not fighting the fight. Mediation is a voluntary process which gives a divorcing or separating couple the opportunity to make their own arrangements for their financial and personal future, while protecting themselves and their children from additional stress and the expense of litigation.

The strength of a mediated agreement is that it is built by both parties together in an open process that requires all participants to recognize and make accommodation for the needs of the other participants, often without having to compromise one’s own.

While no two situations are alike, the emphasis in a mediated approach is to achieve a satisfactory settlement in an efficient, cooperative manner. This might include "four way" settlement conferences where the parties meet along with their Divorce Mediation lawyers to work on a settlement.

Practice Areas and Legal Definitions

Divorce Mediation:
Divorce mediation is a voluntary process which gives a divorcing or separating couple the opportunity to make their own arrangements for their financial and personal future, while protecting themselves and their children from distress and the needless expense of litigation. The strength of a mediated agreement is that it is built by both parties together in an open process that requires all participants to recognize and make accommodation for the needs of the other participants, often without having to compromise one’s own. The philosophy of Divorce Mediation is that as much effort should be exerted toward settlement as is traditionally spent in preparation for and conducting a trial.

Divorce:
A court of law is the only way one can obtain a divorce decree, dissolution, legal separation, nullity or other form of terminating a marriage. Other than the termination of the marital estate, the court also has jurisdiction to resolve other issues that are intertwined in the existing marriage which include, but are not limited to: custody and visitation rights, division of property of the marital estate, spousal support, child support, restraining orders, etc.

Property and Debt Division:
Marital property attained during marriage, regardless of whose name it is under, can be divided. Marital property can include real estate (including a home bought in contemplation of marriage), pension plans, vehicles, bank accounts, income tax refunds and/or household furnishings. However, property that is inherited by one spouse is not considered marital property, i.e. a family business or estate. If you are contractually bound with your ex spouse on a debt, the creditor can require the entire payment of that debt from your share of the community property even though the divorce decree assigns the debt to your ex spouse. Depending on the terms of your divorce decree, you may be able to have certain support obligations under the divorce decree determined to be non dischargeable by the bankruptcy court or in state court.

Prenuptial Agreements:
A prenuptial, or premarital agreement (often referred to as a "pre nup") is a written contract created by two individuals who plan to be married. This agreement lists all individually owned property, such as homes and businesses, family assets, stocks and bonds, savings accounts as well as debts, and specifies what will and will not remain individually owned property after the legalization of marriage. Prenuptial agreements also specify whether spousal support will be paid in the event of a divorce, and the intentions regarding distribution of individually owned property upon death.

A factor that cannot be stipulated in a prenuptial agreement is child support. A couple cannot lawfully agree in a prenuptial agreement that either part will in no way be responsible for child support. Also, a few states do not allow prenuptial agreements to modify or eliminate the right of a spouse to receive court ordered alimony at divorce, although a prenuptial agreement can facilitate in the degree of compensation.

Child Custody:
Custody is the charge and control of a child, including the right to make all major decisions such as education, religious upbringing, training, health and welfare. Custody usually refers to a combination of physical custody and legal custody. Many factors influence an award of custody and the way a case is presented in court can have a large impact on the result for you and your children. If you are awarded the children as a primary custodial parent, it has far reaching consequences both to you and to their well being and development.

Child Support:
Child support is a periodic payment made to a custodial parent from a non custodial parent to help compensate a child's living expenses, i.e. food, clothes, etc., and any other related debts. When one parent is awarded sole custody, as in the event of a divorce, the non custodial parent is required to fulfill his or her child support obligation by making set payments, whereas the custodial parent meets his or her support obligation through the custody itself. When parents are awarded joint custody in a divorce, however, the support obligation is shared and is based on a ratio of each parent's income and the amount of time the child spends with each parent.

The obligation to support minor children cannot be waived by either parent and is a right enjoyed by the child, not the parent. Each state has guidelines that factor the amount of child support, such as the amount of time spent with the child, the income of both parents and the standard of living the child is accustomed to. The court may allow deductions for items such as catastrophic medical expenses and travel expenses for visitation.

Jurisdictional Issues:
When faced with a relocating custodial parent, the court will general require that parent to give the other parent a minimum amount of notice prior to the anticipated move. This notice gives the non custodial parent an opportunity to go to court and seek orders restraining the relocation of the child.

These so called move away cases have gone back and forth on allowing and disallowing a move by the custodial parent with the minor children for over 20 years. While the best interests of the child have always been central to the decision, the uncertainty has made this area murky. Prior to the Uniform Child Custody Jurisdiction and Enforcement Act, when parents sought an advantage in a custody tug of war, they would move to a "friendly" jurisdiction (that is, a region with a history of rulings favorable to their position). However, after the UCCJA was adopted by all 50 states, family law courts were forced to defer jurisdiction to the home state, and this custody battle tactic lost favor.

Spousal Support (Alimony):
Alimony is temporary or permanent financial support paid from one separated spouse to the other, either in one lump sum or in installments. Alimony is designed to provide the lower income spouse with money for living expenses over and above the money provided by child support. Alimony differs from child support because it is at the discretion of the judge. Child support is usually determined by state sanctioned guidelines.

There are several factors a judge considers when deciding whether to grant alimony. These differ from state to state, of course, but they usually involve things like the parties' relative ability to earn money, both now and in the future; their respective age and health; the length of the marriage; the kind of property involved, and the conduct of the parties. In general, about the only time a judge will award alimony in most states is where one spouse has been economically dependent on the other spouse for most of a lengthy marriage.

Adoption:
Adoption is the legal process by which a person becomes a lawful member of a family different from their birth family. Once a final order of adoption has been ruled by a court of law, the adoptive parents gain the same rights and responsibilities as parents whose children are born to them; subsequently, an adopted child gains the same rights as birth children in regard to inheritance, child support and other legal matters. In most U.S. jurisdictions, at the time the adoption is finalized, the adopted child's name is legally changed and the court orders the issuance of a new, amended birth certificate.

Paternity:
Paternity covers all the matters related to proving the parentage of a child or children. For married couples, paternity of a child is assumed to be the spouse, unless there is a court order or judgment stating otherwise. For unwed parents, paternity can be established by signing an Affidavit of Parentage or by filing a paternity action with the court.

Legally establishing paternity or determining that someone is not the parent of child can have a significant impact on divorce settlements, property division, child custody, child support and the ability to move out of state. Determinations of paternity can also have a significant impact on interstate conflict between unwed parents.

If you are involved in a divorce or child custody case and need the help of an experienced Los Gatos/ San Jose California Family Law Attorney skilled in Divorce Mediation, call Benita Ventresca today at (408)395 8822, or complete the contact form provided on this site to schedule your free consultation. I provide legal guidance to clients throughout Santa Clara County, the Bay Area and Northern California, including San Jose, Los Gatos, Cupertino, Saratoga and Campbell.

Professional Profile

Benita Ventresca
I emphasize communication with my clients, persistent advocacy, and attention to all aspects of their case. Regardless of the size of the case, my commitment is to obtain a just result for each of my clients.

I was raised in Palo Alto. As a single parent I worked while obtaining my B.S. in Psychology and later my J.D. from Golden Gate University. My oldest daughter obtained her degree in computer engineering and my youngest also obtained a law degree.

I have practiced in the bay area for the past twenty nine years and find it very rewarding to practice family law. I attempt to settle cases as promptly as possible in a manner that will best serve my clients.

I am sensitive to the rich traditions of the legal profession and my community, and I am dedicated to providing my clients with professional service along with vigorous advocacy of their interests. I strive to balance client interests with important individual and community values. It is something I work very hard to achieve.

My goal is to provide a level of performance and satisfaction that demonstrates to clients nothing less than the best legal service available. I am immensely proud of my accomplishments and invite you to learn more about who I am, who I represent, and the range of services I provide.

EDUCATION:

J.D. Golden Gate University School of Law, San Francisco, CA
B.S. Psychology University of California, Berkeley, CA

FAMILY MEDIATION OR COURT LITIGATION

Why Mediate?
Family Mediation works - the parties stand by their mediated agreements: More than 80% of divorce cases mediated settle in mediation. (Kelly J. A Decade of Divorce Mediation Research; Family and Conciliation Courts Review (1996) 34(3).373-385; After their divorce case is mediated and settled, the spouses are more likely to stand by the terms of a mediated settlement such as abiding by the terms of the co-parenting schedule and making support payments according to the mediated agreement. The parties participate in making the mediated settlement and are more inclined to follow its terms. When the judge makes an order after court litigation, the parties may feel more resentment toward that order, as they have not participated in making the order.

Parties in mediation may each hire their own lawyers aside from the mediator to provide legal advice as they feel necessary. Their attorneys may also review any proposed agreement before the parties sign it. However, mediation usually entails far less attorney time and a lot less total attorney fees than when the spouses engage in court litigation. Further the total cost of litigation is a lot more than mediation since each party usually is required to hire his or her own experts driving the cost of divorce even higher.

What is Family/Divorce Mediation?
Family Mediation is the mediation of disputes involving the following issues:

Community Property
Visitation /Custody
Child Support
Spousal Support/Alimony
Legal Separation
Annulment
Paternity
Pre-Nuptial Agreements

Mediation is an effective, efficient and economical method of dispute resolution and is essentially an assisted negotiation. An impartial individual with specific training and experience in dispute conflict management and resolution, helps individuals settle their differences. The mediation process is private confidential and cooperative. Rather than focusing on fighting, the parties are encouraged to work toward their common goals of an early, inexpensive and satisfactory resolution of their problem. The process tends to strengthen rather than damage relationships between parties. The power to decide remains with the parties.

Mediation is usually extremely beneficial to couples who are going through a divorce as well as to those who are already divorced and have a problem with their dissolution judgment and/or with their ex spouse. Mediation can save time and money and also promotes harmony and resolution rather than the conflict of court litigation.

Divorce mediation is a way to resolve the issues of a divorce in a manner that permits the couple to keep control of their own divorce. The only persons making decisions in the couple’s divorce process are couple actually obtaining the divorce. This is in contrast to a divorce proceeding in court where a judge makes the decisions instead of the actual divorcing couple.

Divorce mediation usually consists of meetings between spouses or parents (if it is a custody proceeding or a modification proceeding after a divorce) that typically last about 1 2 hours each session if this amount of time is convenient for the parties. During those meetings, the parties discuss the issues which they believe need to be addressed in their matter at that time. The mediator may suggest the order in which the issues are discussed. The mediator facilitates the discussions and the negotiations between the parties that generally occur during these meetings. The mediator may offer suggestions and assists in resolving the parties’ issues. When an agreement is reached, the mediator summarizes that agreement and then presents it to the parties for review and approval. If the agreement conforms to the agreement of the parties, then the mediator has the parties to sign agreement.

You Stay in Charge of Your Divorce When You Mediate:
In mediation, the parties may stay in charge of their own divorce and their own divorce proceeding. The parties take an active role in resolving their disputes. The parties are given guidance by the mediator but do not lose control: Spouses in divorce mediation gain guidance to make informed choices and the knowledge to create fair agreements.

The parties remain in control of their divorce. Court litigation, in contrast, places control in the hands of judges and the parties’ attorneys. Because the judge and the attorneys are in control the actual outcome of the divorce cannot be predicted. In the Mediation process the parties can be decision makers in the important personal issues of their personal life, i.e. who will have custody of the children, the visitation plan, the amount of child and spousal support. The prior issues are usually resolved by the judge in court litigation.

Mediation Can Save You A Lot Money:
Mediation is usually far less expensive than litigation. It can save the divorcing couple a lot of money. Trials get very expensive, what with the cost of attorneys, expert witnesses and time taken away from work etc.

For many couples divorce becomes financially devastating when they engage in an adversarial process of litigation. In this process, each spouse retains an attorney and then sometimes expert witnesses in the mistaken belief of gaining an advantage over the other.

Judge James W. Stewart, the former presiding judge of the Santa Clara County Superior Court (Family Division), states in Divorce Handbook for California (Impact Publishers, 2002): “Realistically, you cannot gain a significant advantage in litigation by hiring a more skillful attorney.” Judge Stewart then adds, “Put aside the notion that your attorney is a great courthouse advocate whose skill and ability will hypnotize the judge. Your case is not going to trial before a judge short of a miracle; if it does, it will be a financial catastrophe for you.”

People reject adversarial divorce in favor of divorce mediation for several reasons. Many have heard, sometimes from family and friends, that a litigated divorce takes too long, sometimes four or five years, destroys relationships, causes misery and psychological problems to their children, humiliates both spouses, and rarely produces a settlement that either party thinks fair. Others resent the needless financial sacrifice which averages $45,000 per spouse in California, according to Judge James Stewart, who was a leading expert on family law and the adversarial divorce process in California.

Usually in a contested divorce proceeding, the client and the attorney must spend a great deal of time going to court, waiting for their own case to be called and sometimes having their case be continued to another day due to scheduling conflicts, etc. They must wait in the courtroom until other cases are heard first. There is a lot of wasted time that the parties must pay in attorney fees in litigated divorce cases. This is the just the nature of the court system and is not the fault of the attorneys nor the fault of the court system. The parties do not have to pay for this wasted time in mediation. Only their individual particular case is scheduled with the mediator. There is no waiting time for other cases to be heard.

Mediation Is Not as Harmful to the Children:
Studies show that families that mediation their differences have a much better after divorce relationship than families that litigate their differences in their divorce case. Mediation is beneficial in situations involving children, since it is in the interests of the children that their parents get along even if they no longer live together as husband and wife.

You’ll protect your children from the trauma of a litigated divorce. Children are the most severely psychologically wounded in an adversarial divorce or separation. Children can be spared much anxiety when their parents choose mediation over litigation. The parents do not argue as much or try to gain an advantage with the children with respect to custody when they mediate rather than litigate.

How Does the Mediation Process Work:
Mediation usually consists of meetings between the two spouses or parents which can generally last for several hours each. The spouses or parents themselves determine the length of the sessions along with the mediator. During those meetings, the parties discuss those issues which they feel need to be resolved. The mediator’s role is to facilitate the discussion, assist with communication between the parties, provide suggestions, and use his or her training to assist the parties to resolve their differences and then write up an agreement which covers those areas that have been resolved.

The actual mediation process usually involves sitting down at a table or desk in a neutral location where both parties will have the opportunity to present their side of the story in a non-confrontational way. In the first session the mediator will discuss the mediation process, and will decide with the parties and they will decide in the session how the session will unfold, like who goes first and how long they speak, whether you will have a joint session or speak separately with the mediator and whether you will have your individual attorney present at the session.

The actual mediation process usually involves sitting down at a table or desk in a neutral location where both parties will have the opportunity to present their side of the story in a non confrontational way. In the first session the mediator will discuss the mediation process, and will decide with the parties and they will decide in the session how the session will unfold, like who goes first and how long they speak, whether you will have a joint session or speak separately with the mediator and whether you will have your individual attorney present at the session.

Mediation is Confidential:
One of the advantages of mediation is that it is confidential. The emotional and perhaps embarrassing issues in divorce and child custody matters will be kept private, as opposed to a trial where all of the proceedings are public record and usually kept in the file at the clerk’s office. Mediation is confidential, as the process does not become part of the public record as a tried divorce case. This is especially important when the mediation concerns children.

The adversarial nature of a custody case can severely strain the ability of parents to communicate with each other and their children. Dealing with custody and child support in mediation can often prevent the bitterness that seems to go hand in hand with a litigated divorce. Mediation supports positive family interaction which helps the children who want a close bond with both their mother and father.

What Happens If The Parties Can’t Agree?
Generally, mediation sessions are structured with a short agenda (list of issues) and then the decision of which issues will be discussed first. Usually, the parties start with the smaller and then proceed to the more complicated issues. The parties will discuss and negotiate each until resolved and then proceed to the next issue until all of the issues are resolve.

What are the Benefits of Mediation?
Divorcing families have better relationships after the divorce: The divorced parents are better able to co parent after the mediation. The children are better protected from the trauma of a litigated divorce in which the parents are adversaries. Children are sometimes suffer from psychological problems after an adversarial divorce or adversarial proceeding involving the children. Children often suffer from much anxiety when their parents litigate. The parents do not argue as much children with respect to when they mediate rather than litigate their divorce or matters concerning their children.

Divorcing parties make the decisions not the attorneys or a judge when they mediate: Mediation allows the parties, the clients, to have control of the divorce process rather than the judge, the attorneys or the court system. The final decisions made in the mediation process are the decisions of the divorcing spouses’ not the mediator nor the decision of the judge as in court litigation. In mediation both of the parties have had input resolving the issues. In divorce mediation, the couple controls both how and when the decisions get made. Further In divorce mediation, the couple controls both how and when the case proceeds. The parties decides when to have their meetings, when to sign their agreements etc.

Mediation is less expensive than a contested divorce: The average cost of attorney representation in a contested divorce proceeding is $45,000 per spouse in California. Judge James W. Stewart, former judge of the Santa Clara County Superior Court, counsels in Divorce Handbook for California (Impact Publishers, 2002).

Mediation is less stressful: Mediation is a less stressful, and a more peaceful resolution to ending your marriage. Usually during a contested divorce, each spouse hires his or her own attorney. Then it becomes a bitter situation where often the spouses talk only through the attorneys. Sometimes miscommunication results and the situation becomes more and more hostile.

You have a lot less chance of destroying your relationship with your spouse when you mediate than when you proceed by court litigation. Usually, when a party pursues litigation, the other party considers the process of being sued as a hostile act. Usually, the party is served by a process server with the summons and complaint. This is not a good start for future settlement.

Mediation on the other hand, is conducive to a continuing civilized relationship between the parties. It is a process that does not force family and friends to take sides. Mediation allows for the resolution of the disputes with dignity. Mediation does not deplete the parties emotionally, as it is not combative like court litigated divorce.

Why Choose Mediation Over Litigation?
Mediation works and the parties stand by their agreements: Research indicates that more than 80% of divorce cases settle in mediation. (Kelly J. A Decade of Divorce Mediation Research; Family and Conciliation Courts Review (1996) 34(3).373 385; Benjamin M. Irving H. Research in Family Mediation: Review and Implications, Mediation Quarterly (1995) 13(1) 53 82.)

Judge James W. Stewart, former presiding judge of the Santa Clara County Superior Court, states in Divorce Handbook for California (Impact Publishers, 2002): “Realistically, you cannot gain a significant advantage in litigation by hiring a more skillful attorney.” Judge Stewart adds, “Put aside the notion that your attorney is a great courthouse advocate whose skill and ability will hypnotize the judge. Your case is not going to trial before a judge short of a miracle; if it does, it will be a financial catastrophe for you.”

When divorcing couples pursue court litigation, 90% of cases end in a negotiated settlement, often just days or hours before the case is scheduled for trial. This decision to settle pretrial usually coincides with the parties’ realization that most of the issues that they have been contesting for example, the amount of child support and the division of property will be set by a judge according to a predetermined formula. If these same parties would have settled through mediation, they would have saved tens of thousands of dollars.

People choose divorce mediation over the process of divorce litigation in court for many reasons. Some have been told that court litigated divorce takes a long time, creates hard feelings between the spouses, creates anxiety in the children, and is not conducive to a settlement that makes either party happy.

Mediation proceeds at your own pace. The parties can decide when they wish to meet for the next session. They can schedule mediation sessions to suit their own schedules.

Spouses are more likely to stand by the terms of a mediated settlement such as abiding by co parenting schedules and making timely support payments. Research suggests that people feel less resentment towards a settlement when they have participated in making the settlement as they do.

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