Many clients ask us what they can expect in mediation and we are careful to explain the ins and outs and the mechanics of the mediation process. Mediation can be a very positive experience for those who are of a mind to compromise and who are fortunate to have the help of a truly unbiased and experienced mediator. Knowing the basics ahead of time often helps alleviate our clients’ anxiety.
The basic idea behind mediation is that the two parties, along with their attorneys, sit down with a neutral third party and attempt to reach an agreement on various issues in a divorce. The discussions that take place during mediation are kept confidential and are prohibited from being used if the matter eventually winds up in court. This arrangement is intended to allow for the worry-free sharing of ideas and offers.
One fact worth taking to heart is that mediators are referred to as neutrals because that is the essence of their role – to maintain complete neutrality regardless of the facts of a case. Maintaining neutrality can be a challenge when facts weigh heavily in favor of one party, but neutrality is absolutely essential. If one spouse perceives a lack of absolute neutrality, the mediation is unlikely to be successful.
Another fact to remember is that mediation can only result in an agreement when both parties engage in mediation with a good faith intent to be open minded and willing to compromise to find the middle ground in every disputed issue.
Being open minded and willing to compromise may sound reasonable enough, but often the problem is that by the time one or both spouses decide to file for divorce, good faith is long gone. A spouse who was the victim of neglect or deceit may not be able to forgive and forget. In our family law practice, we deal with highly contested cases where emotions are frequently too raw for a mediation to be successful.
If you are facing mediation, the Law Offices of Judy L. Burger are here to help. We will assist you in preparing for mediation and help you construct a back-up plan in the event mediation is unsuccessful. Our attorneys will aggressively pursue the best outcome possible for you, whether you need to demonstrate the other parent’s faults, or defend such claims. Judy L. Burger is known for steadfastly representing clients in high conflict cases in and around the San Francisco Bay and Sacramento areas. Call us today to learn more about how we can help at (415)293-8314 in the San Francisco Bay area or (916)631-1935 in the Sacramento area, or contact us online via our confidential inquiry form. Some Facts to Know Before Your Divorce Mediation
Many clients ask us what they can expect in mediation and we are careful to explain the ins and outs and the mechanics of the mediation process. Mediation can be a very positive experience for those who are of a mind to compromise and who are fortunate to have the help of a truly unbiased and experienced mediator. Knowing the basics ahead of time often helps alleviate our clients’ anxiety.
The basic idea behind mediation is that the two parties, along with their attorneys, sit down with a neutral third party and attempt to reach an agreement on various issues in a divorce. The discussions that take place during mediation are kept confidential and are prohibited from being used if the matter eventually winds up in court. This arrangement is intended to allow for the worry-free sharing of ideas and offers.
One fact worth taking to heart is that mediators are referred to as neutrals because that is the essence of their role – to maintain complete neutrality regardless of the facts of a case. Maintaining neutrality can be a challenge when facts weigh heavily in favor of one party, but neutrality is absolutely essential. If one spouse perceives a lack of absolute neutrality, the mediation is unlikely to be successful.
Another fact to remember is that mediation can only result in an agreement when both parties engage in mediation with a good faith intent to be open minded and willing to compromise to find the middle ground in every disputed issue.
Being open minded and willing to compromise may sound reasonable enough, but often the problem is that by the time one or both spouses decide to file for divorce, good faith is long gone. A spouse who was the victim of neglect or deceit may not be able to forgive and forget. In our family law practice, we deal with highly contested cases where emotions are frequently too raw for a mediation to be successful.
If you are facing mediation, the Law Offices of Judy L. Burger are here to help. We will assist you in preparing for mediation and help you construct a back-up plan in the event mediation is unsuccessful. Our attorneys will aggressively pursue the best outcome possible for you, whether you need to demonstrate the other parent’s faults, or defend such claims. Judy L. Burger is known for steadfastly representing clients in high conflict cases in and around the San Francisco Bay and Sacramento areas. Call us today to learn more about how we can help at (415)293-8314 in the San Francisco Bay area or (916)631-1935 in the Sacramento area, or contact us online via our confidential inquiry form. 
The stress of being a military member deployed overseas to a hostile environment can be compounded by worrying about children left behind in the care of others. The joy of finally coming home can quickly turn into a nightmare if an ex-spouse refuses to return a child. This subject was the basis for a recent ruling from a California Court of Appeal.
In the case entitled In re Marriage of E.U. and J.E., both of the parents are military members. When they divorced, the court awarded joint legal custody to both parents, with the father having primary physical custody. Anticipating the possibility of deployments for both parents, the court included provisions in the final order that if one parent deployed, then the other parent would assume the role of primary parent. The order further provided that when the deployment ended, custody would revert to pre-deployment status upon return of the deployed member.
As fate would have it, the father deployed and while he was away the mother filed for and was granted a temporary custody order. When the father returned, he commenced a long and arduous legal battle to regain primary custody of his child as originally ordered. Most recently, a California Court of Appeals found in the father’s favor and he regained custody of his child.
Interestingly, during the course of the proceedings, the California Legislature passed a statute requiring the return of a child in a situation such as this to the primary custody holder. Time will tell whether and to what extent this law will be challenged by those claiming a situation has changed and returning the child to a parent recently returned from deployment is contrary to the child’s best interest.
If litigation is necessary to protect a child’s best interest, then it should be commenced immediately.
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Celebrities and the sometimes twisted lives they lead make for fabulous tabloid fodder – entertaining perhaps, but not usually educational per se. On the contrary, the current soap opera surrounding Kim Kardashian, Kris Humphries, and Kanye West provides the perfect scenario to learn about one aspect of California law most people may be unaware of.
Kardashian and Humphries married on August 20, 2011. Seventy-two days later, they split up and Humphries claimed the marriage was a fraud from the get-go. In legal parlance, Humphries claimed grounds for an annulment. Kardashian, on the other hand, wanted a divorce and denied any fraud on her part. Leaving the intervening details to the tabloids, suffice it to say that as of January 2013 Kardashian and Humphries are still legally married.
Which brings us to the twist in this story: Kim Kardashian is pregnant and it’s no secret that the baby was sired by Kanye West. Nonetheless, under California law, as long as Kardashian is married to Humphries, Humphries will be presumed by law to be the baby’s father. Like other states, California has anti-bastardization laws, also known as parentage laws, which state when a mother is married, her newborn child is legally presumed to be her husband’s child.
In other words, Humphries will be deemed to be the baby’s legal father unless he disputes parentage through the court system. He will have all the rights and responsibilities of a father to include visitation rights and the duty to provide child support.
Surely Kardashian and West can put together enough money for diapers and daycare, but you never can tell with some folks. Humphries may want to take steps to protect his good name, especially since he claims he was never legally married to begin with.
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This article should be filed under the heading, “Things clients should ask, but don’t.” Granted, getting divorced is rarely a walk in the park, so it is very understandable when clients are too stressed to think clearly and ask all of the pertinent questions. That’s one reason we welcome phone calls and emails between meetings. An informed client is an empowered client, and mid-divorce is a good time to feel empowered.
So, without further ado, here is a list of five mistakes to avoid when getting divorced.
The recent decision by Los Angeles Lakers star Kobe Bryant and his wife Vanessa to forego divorce in favor of working out their differences is significant for several reasons. Most importantly their children will not have their lives turned upside down by the division of their family, and will continue to have Mommy and Daddy raising them together.
Hopefully the decision was not financially motivated, but we would be remiss if we didn’t also point out the fact that Bryant will save millions of dollars in child support and spousal support. Based on his reported income, Bryant could have been ordered to pay $1.3 million per month in payments to Vanessa if she were awarded primary physical custody.
Additionally, since the Bryants celebrated their tenth anniversary in 2011, their marriage is considered by California law to be long term. What this means is that all wages earned, and all items purchased since the day the exchanged nuptials would likely be considered community property and divided between the two accordingly.
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Adjusting to divorced life can be difficult, especially when struggling to make ends meet. A child support order won’t pay the bills if the other spouse is not paying accordingly. Some spouses who are ordered to pay child support or spousal support immediately commence the underworked and underpaid strategy. Thankfully, California provides a mechanism for separating the vocationally disenfranchised from the lazy.
If you believe your ex-spouse is voluntarily unemployed or underemployed and refuses to submit to a vocational examination, you can petition the family court to permit the examination. The process is initiated by filing a petition and showing good cause to support your request.
If the results of the examination show your ex has the capacity to generate earnings, the judge can impute income for purposes of calculating child support or spousal support. This means the judge can determine a fictional amount of income the ex should reasonably be expected to generate.
An experienced family law attorney knows the tactics used by parents who refuse to pay child support, including changing jobs frequently, moving from state to state, working for cash and childish defiance of the court order. At the 
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A putative marriage is one where the couple intended to enter into a valid marriage, but for one reason or another, the marriage is legally void in fact. There may have been a legal barrier to marriage, such as one of the parties was already married to someone else, or unbeknownst to the couple, the official who performed the marriage ceremony was not legally authorized to do so.
Sections 2250 – 2255 of the California Family Code explains a putative spouse’s rights when the couple breaks up. Rather than a petition for divorce, one or both parties must file a petition entitled “In re the marriage of ____ and ____” and the petition must state that it is a petition for a judgment of nullity of the marriage.
Once the marriage is found void or voidable, then the Court may proceed to divide property, award spousal support, and award custody of the children in a manner substantially similar to standard divorce proceedings as though the couple were legally married.
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Common law marriage is a matter of state law, so the requirements for creating a common law marriage and whether a marriage exists at all vary from state to state. Under California law, it is not possible for a couple living in California to create a common law marriage, regardless of how long they live together or whether they refer to each other as husband or wife.
Nonetheless, California courts may recognize a common law marriage that was created when the couple lived in another state. For instance, in Alabama a couple may be considered married under common law if they cohabitate for a period of time, and if during that time they hold themselves out to the public as husband and wife. If the couple then moves to California and decides to break up, a California court may entertain divorce proceedings for the couple in deference to the valid common law marriage created in Alabama.
California’s policy of not allowing common law marriages to be created in California is somewhat balanced by California’s stance on “palimony.” The word palimony is a misnomer because it is not really the equivalent of alimony. Rather, a claim for palimony is based on a breach of contract theory and pursued as a civil action rather than in divorce proceedings. Essentially, a person being left behind in a breakup may be able to pursue compensation under a breach of contract theory if he or she can prove that a valid agreement existed between the couple for ongoing financial support.
A full discussion of palimony will be the topic of a later post, so check back soon to learn more.
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