Divorce Mediation in California

What Is Divorce Mediation?

Divorce mediation is the process of discussing your disagreements with your spouse when you decide to get divorced.

It isn’t like marriage counseling when the final goal is to help a couple reconcile. Instead, you enter divorce mediation when you’re absolutely sure that you’d like to end your marriage.

Divorce mediation enables you to decide how to end it peacefully.

Couples work with a mediator to discuss their disagreements. A mediator can be a lawyer or another certified professional, but they can’t give you legal advice.

Your mediator will participate as an expert in family law. They know what the state needs to see during a divorce and suggest every option couples can use.

A mediator will also work with you to create a divorce settlement with which you and your spouse agree. The process is a lot less formal than working with a lawyer, and many people find it easier to communicate with each other in a mediated environment.

Is Divorce Mediation Required in California?

Under California Family Law, divorce mediation is mandatory only in child-related cases concerning child custody issues and visitation schedules.

In these situations, the couples have a counseling session to minimize the emotional damage on minor children and help keep private possibly sensitive matters.

The court will also order mediation if step-parents or grandparents apply for a visitation order. If the natural or adoptive parent doesn’t attend these mediation sessions, they automatically waive their right to object later (California Family Code, § 3171).

Issues that don’t concern children do not have a mediation requirement in most jurisdictions.

However, California courts in some counties may order the parties to attend mediation and resolve the disputes before going to the courthouse. This way, local authorities hope to reduce court congestion.

Mediation in a California divorce can be helpful even if custody and visitation are not contested. In particular, it can help resolve other critical matters between the spouses, like who will get the house.

It is essential to understand that while you are not legally obligated to mediate such issues as property division or alimony, mediation is worth considering if you don’t want to go to trial.

Out-of-court negotiations can be a very effective way to come to an agreement without costly lawyers and the need for lengthy court battles.

Who Can Use a Divorce Mediator?

Divorce mediation is an excellent solution for some couples, but others might need more help. In addition, there are some circumstances where mediation may not work for you. If you don’t fit the criteria below, skip mediation and hire an attorney at the beginning of your divorce process.

Here are examples of couples who can use mediation.

Couples Who Are Willing To Communicate

Mediation is based on effective communication. So, you can’t use mediation in your divorce if you aren’t speaking to each other. If emotions run high, you might want to take a few weeks to cool off before you begin mediation.

If you have children, you should work on improving your communication for the sake of co-parenting.

If you and your spouse are in a place where you can communicate about vital subjects without animosity, divorce mediation is a beneficial solution for you.

Couples With a Low- to Medium Level of Disagreement

If you and your spouse are currently fighting about every aspect of your divorce settlement, mediation isn’t going to work for you. Mediation works best for couples with a lower level of disagreement.

For example, if you can’t agree on whether to use joint custody or primary custody, divorce mediation can help you figure things out. But you’ll likely need lawyers if you battle for sole custody.

Couples With Simple Assets

If you only own one or two pieces of real estate, a couple of cars, and some simple investment or retirement accounts, mediation can help you divide your assets. The court wants to see that your assets are divided fairly and sensically. Your mediator can keep you on the right track.

Mediation may not be the best choice for couples with many joint assets or community property. Negotiations can get complicated if you own a business, several pieces of property, and dozens of investments.

If you both have a thorough understanding of your assets and a clear idea of how to divide them, you can use mediation. On the other hand, if you’re overwhelmed by dividing your assets, get legal help.

Even if you and your spouse mostly agree on dividing things up, you’ll probably need a lawyer’s help to ensure your asset division is handled correctly. Of course, you can continue to use mediation for other aspects of your divorce, but you should settle the division of complicated property with a legal team.

Couples Who Are Willing to Comply With the Divorce Process

The power of the court doesn’t back mediators. They can’t issue subpoenas, they can’t hold you under oath, and they can’t impose consequences if someone withholds or presents false information.

If you believe your spouse might hide assets or lie to avoid a fair divorce settlement, you should hire a lawyer and take them to court. Only the court can compel them to comply with the divorce process and hold them accountable if they don’t.

Couples With No History of Domestic Violence or Abuse

If you’re a victim of abuse and domestic violence or intimate partner abuse, you shouldn’t use mediation.

It’s not a safe idea to willingly enter a situation where you must speak to someone who abused you. In addition, an abuser can belittle or threaten their spouse into complying with a divorce settlement that’s unfair or that they don’t genuinely agree with.

If you’re a domestic violence survivor, get legal help for your divorce.

The National Domestic Violence Hotline offers resources for survivors who cannot afford legal costs out of pocket. Thus, they can guide you through getting divorced with safety precautions when leaving an abusive marriage.

When Can You Use Divorce Mediation in California?

Mediation in California is not restricted to one particular time.

So, a couple may use the mediator’s help at any time. For example, they can resort to mediation before, during, and after the divorce proceedings when a marriage is terminated.

Before Filing for Divorce

A mediator can assist couples who are attempting to reach an uncontested divorce agreement but can’t resolve one or a few differences.

In this case, a mediator can focus the couple’s attention on these particular disputes and guide them through possible options to settle the matters. This way, the spouses can speed up the divorce process and avoid hiring lawyers.

During the Divorce Process

After filing for divorce in California, a couple could resort to mediation even if they’ve already hired attorneys.

Moreover, if they have disputes over child custody and visitation, the court will order them to attend a few mediation sessions, whether they want to or not.

The good news is that spouses with minor children may use free court-connected child custody mediation assistance provided by Family Court Services in their county.

After Divorce

Once the divorce is finalized, ex-spouses sometimes discover that they still struggle to agree on specific issues, especially when children are involved. So, they may need a mediator’s help even after divorce.

Post-divorce mediation is a peaceful and effective way to change something in the final dissolution decree or settlement agreement.

For example, it might concern alimony, child support payments, a visitation request, etc.

Modification requests concerning child-related matters will unconditionally go through mediation.

What Can Be Decided in Mediation?

Mediation allows divorcing parties to negotiate and reach a settlement agreement on various issues. For example, in divorce mediation, spouses can discuss and make vital decisions on matters such as child custody arrangements, child support, property division, etc.

Let’s look at each of them in detail.

Parenting Plan

Creating a plan to determine how and when each parent will spend time with their child is crucial in the event of divorce or separation.

A skilled mediator, either privately hired or assigned by the court, will help parents develop a parenting plan agreement and guide them through possible visitation schedules.

In California, a parenting plan may include the following details:

• legal and physical custody decisions
• visitation schedules that include weekdays and weekends
• arrangements for summer, winter holidays, spring breaks, etc.
• the way of communication between parents and children
• participation in extracurricular activities
• healthcare arrangements
• procedures for post-judgment modifications

Developing a parenting plan through mediation allows parents to understand better how state laws apply to their situation and resolve disagreements in a confidential setting.

Child Support

Child support is another critical question discussed during mediation sessions. A mediator will typically take the time to discuss the intricate details of the child support amount, the duration, and the manner of payments with the couple.

The discussion will include topics ranging from the current California child support guidelines to the factors that could lead to a deviation from those guidelines. In California, it is typical to pay child support until a child turns 18.

If they attend high-school full time, the payments extend to their 19th birthday. As for the amount of support, it is calculated according to both parents’ income and the number of kids.

Other issues discussed at the mediation on child support may include medical expenses, life, and health insurance, the division of the future higher education cost, and potential modifications to the child support order.

Spousal Support

Mediation can help parties establish the need for alimony, its amount, duration, and type. For instance, the spouses may agree on temporary alimony. In particular, one spouse will pay the negotiated sum to another party to uphold the standard of living during the divorce proceedings.

Mediators enable couples to negotiate long-term alimony agreements. Usually, the decision should be based on two primary factors: the supporting spouse’s ability to pay support and the receiving spouse’s financial needs.

California Family Code §4320 outlines several other factors the court considers when awarding spousal support. The few most important are the length of the marriage, the standard of living, and the history of domestic violence.

Other matters discussed during mediation sessions regarding alimony are potential modifications of spousal support, when it should end, and tax implications.

Since spousal support can be highly contentious, the spouses will benefit from a confidential and collaborative environment provided during mediation. It will give them a better chance to develop a mutually beneficial agreement.

California Community Property

Couples who decide to divide their property through mediation have more freedom to choose how to do it than in a litigated divorce, where a judge will consider various factors.

In particular, all marital (community) property in California should be distributed 50/50 between spouses. However, it doesn’t mean that each spouse receives one-half of every property item. Instead, the assets and debts are divided according to their market value.

Divorcing couples who choose to proceed with an experienced divorce mediator can divide their marital property according to their preferences. First, however, both must honestly share the list of property items they own, including their income, retirement account information, etc.

This voluntary disclosure helps decrease the cost of mediation compared to litigation when the parties need to hire a lawyer or forensic accountants for a financial investigation.

The spouses and a mediator will deal with the following issues regarding community property during mediation:

• identifying the property that needs to be divided equally
• deciding and agreeing on the value of property
• disclosing assets and debts to be divided
• deciding who will get the marital home
• splitting the furniture and household items
• looking into each spouse’s inheritance
• deciding on how to divide pensions and retirement benefits
• agreeing on how to split the family business

If the mediation is successful, the couple can sign a property agreement and submit it to the court, where a judge will include it as a part of the final divorce orders.

Life Insurance

Mediation for divorce can also help to manage life insurance matters effectively. Life insurance plays a crucial role in safeguarding the financial interests of all parties involved in a divorce, mainly when there are children.

During mediation, the spouses can decide whether to change beneficiaries. For example, suppose a parent does not wish their spouse to be the beneficiary of their life insurance after divorce.

In that case, they can instead name their child or a trustee as the beneficiary. And if the insured spouse dies, the funds from the policy can be used as financial support for the child.

However, if the child is the beneficiary, the funds will be held until they reach the age of eighteen.

For this reason, some parents decide to name a trustee to avoid a situation where a child receives a large life insurance payout when they turn eighteen instead of monthly child support payments.

California Divorce Mediation Process

The divorce mediation process in California works differently from litigation or default divorces. Instead, its primary goal is to get the spouses to agree on complicated divorce issues.

But reaching an agreement and drafting a settlement document is not the only step in mediation. It also includes some other critical stages described below.

Find a Mediator

The first step in mediation is to find a qualified mediator experienced in handling divorce-related issues in California, such as child custody, property division, alimony, etc. You can hire a private mediator or choose one from your local court list.

Some mediators offer a free initial consultation (orientation) where they explain the process and get an overview of the spouses’ situation. They may also provide the divorcing couple with the list of documents they will need to collect.

You can start mediation before filing for your divorce. However, typically, spouses go to mediation after they file their divorce petition and serve the respondent with divorce papers.

One benefit of such timing is that you can choose a mediator associated with your court and pay less for mediation or even get these services free of charge if it’s for child custody issues.

Attend the Initial Session

After you’ve chosen a particular mediator, it’s time to schedule an initial meeting.

At the beginning of the mediation process, the mediator will give you a written agreement indicating that you consent to discuss the sensitive details of your divorce during the sessions in your spouse’s presence.

You and your spouse must sign this initial agreement and proceed to discuss your overall objectives and the outcomes you hope to achieve in your divorce.

During the initial meeting, the mediator will also allocate specific responsibilities to both parties, the most important of which is obtaining particular documents for the next session.

Gather Financial Information

California courts require that spouses exchange financial information about their income and property before issuing any orders on property division.

Therefore, if you want to settle these issues via mediation, you and your spouse must obtain access to all financial documents to understand what property you own.

The information you must share is as follows:

• Tax return for the past two years
• Pay stubs
• Credit card statements
• Documents about any investment accounts
• Income and expenses information from real property
• Pension plans and 401(k)
• Statements of all mortgages
• Copies of real estate deeds
• Copies of vehicle titles
• IRAs, annuities, and deferred compensation records
• Health and life insurance policies, etc.

Attend Subsequent Sessions

Afterward, you and your spouse must attend a sequence of meetings.

Typically, these will be collaborative sessions involving the mediator and each side’s lawyer, although their presence is optional. If the mediator arranges private meetings with either you or your spouse, you might consider involving legal help.

It guarantees you do not agree to anything you regret later.

The number of subsequent meetings depends on the complexity of the issues you and your spouse must resolve and the willingness to make concessions. For example, when dealing with complex cases that involve several family law matters, it may take more than a few sessions to reach and sign a settlement agreement.

In particular, child custody and support are incredibly complicated and sensitive, so they can be challenging to negotiate when both parties want primary custody.

Reach a Settlement Agreement

The final step in every successful mediation is drafting and signing a marital settlement agreement. It is a legally binding contract that outlines child custody arrangements, child and spousal support, and division of property and debts.

During each session, your mediator will meticulously record any agreements you and your spouse made. Then, at the end of negotiations, the mediator will help spouses prepare a written contract summarizing all resolutions.

Both parties must sign the document if they agree with all suggested provisions. Having your agreement reviewed by an attorney before you sign it is also a good idea. If you and your spouse disagree on critical issues, you might try another mediation. Otherwise, you will have to go through a court trial.

File the Agreement With the Court

After signing the agreement, you must submit it to the judge.

Don’t forget to add other necessary paperwork. For instance, if you haven’t yet exchanged financial information and filed proof with the court, you must do so.

You’ll need to give your spouse the following papers:

• FL-140 - Declaration of Disclosure
• FL-150 - Income and Expense Declaration
• FL-160 - Property Declaration

After that, fill out the form FL-141 (Declaration Regarding Service of Declaration of Disclosure) and file it with the court.

Other final papers might include the following forms:

• Judgment (FL-180)
• Notice of Entry of Judgment (FL-190)
• Declaration for Default or Uncontested Dissolution or Legal Separation (FL-170)
• Notice of Rights and Responsibilities (FL-192)

You can find the entire list of final forms you need for divorce in the form FL-182 (Judgment Checklist).

Finalize Your Divorce

Upon the judge’s signature of your stipulated agreement, all provisions within the agreement become part of the final court orders. Both you and your ex-spouse must comply with these court orders, or else you might face criminal or civil penalties.

The judge will examine the agreement and all submitted forms to ensure you have included all required information. If the judge has any questions or finds any inconsistencies in the papers, they may schedule a court hearing.

The judge will sign the divorce decree if all necessary information is present and all provisions are in the children’s best interest. In addition, they will incorporate the settlement agreement the spouses negotiated during the mediation into the final judgment.

Cost of Divorce Mediation in California

The cost of mediation in California depends on several factors, including the complexity of issues that spouses want to resolve in their divorce. In addition, the mediator’s experience and the number of required mediation sessions influence the overall cost.

Mediators usually offer two options of payment: flat-fee packages and hourly fees.

Flat-fee options usually include limited hours for you to use but may be less expensive than hourly rates. For instance, you might pay $4,000-$5,500 as a one-time payment.

By contrast, private California mediators charge around $200-$1,000 per hour. If a mediator you choose is also a lawyer, their hourly fees will be closer to an average of $250-$500. Otherwise, you can expect to pay $100-$350.

However, if you choose a mediator from the court’s Mediator Panel List, the first two hours of mediation will not exceed $150-$250, depending on the case.

Overall, you will pay somewhere from $3,000 to $8,000 for divorce mediation in California.

Thus, it is much more affordable than litigation with a contested divorce. You just need to research the mediators’ prices in your area and choose the option suitable for your budget.

Who Pays for Mediation?

No specific rule says who must pay for mediation services in a divorce, and it’s up to spouses to decide who will pay for mediation.

For instance, the parties can split the cost 50/50.

In addition, they can take money from their joint bank account if they agree to use community assets to cover the mediator’s fee.

This way, each party will pay half since all community property will be later divided equally. Plus, it’s a cost-effective and peaceful option for couples pursuing an uncontested divorce.

How Long Does Divorce Mediation Take in California?

The length of mediation depends on each divorce and can take anywhere from several weeks to a few months. A variety of factors explains such a broad timeframe for completing this step.

Some factors can slow the process, while others speed it up.

The duration of mediation primarily depends on the spouses’ willingness to reach an agreement and the number of issues they need to resolve.

For instance, some couples may need more sessions to settle new living arrangements, while others may be ready to discuss asset and debt division or child custody issues immediately.

One significant advantage of mediation is that the sessions can proceed without being tied to the court calendars. However, it is crucial to avoid rushing through mediation because it can increase stress levels and cause mistakes.

At the same time, dragging the process out for too long doesn’t let spouses move forward.

Nevertheless, divorce mediation is usually faster than litigation, which can take several months or even, in some cases, a few years.

What Happens After Divorce Mediation in California?

If a divorce mediation was successful and you and your spouse have come to a joint resolution, the mediator will assist in drafting a written settlement agreement. This document will include all the terms on child custody, property division, alimony, and other issues you negotiated with your spouse.

After that, you must file this agreement and other necessary final forms with the court. The judge assigned to your case will review these papers and decide whether to approve the divorce terms in the settlement agreement.

If some provisions, like property division or custody arrangements, are inequitable or not in the children’s best interest, the judge may require you to attend a hearing. Typically, if there are minor errors, you’ll need to correct them, making the hearing unnecessary.

If the paperwork is in order, the judge will approve and integrate the mediated agreement into the final judgment.

What If Mediation Fails?

Mediation doesn’t always result in an agreement between the parties.

If it fails, the spouses still have a few options to continue working on resolving the disputed issues. For instance, they can choose a new mediator and undergo another divorce mediation process.

A subsequent mediation may also be court-ordered if it concerns minor children.

Often, the judge will ask a mediator to provide recommendations to the court on custody and visitation if the parties can’t agree on these issues.

In some cases, if the spouses partially succeeded in mediation, the judge may resolve the rest of the issues during the court hearing.

However, if mediation is unsuccessful, the parties may have to go through litigation. If the case moves to trial, the spouses cannot use any information obtained during mediation and must present evidence as if they start the process anew.

Apart from going back to mediation or proceeding to trial, the parties have another less common option: resolving the issues independently without lawyers or mediators.

Although pursuing one-on-one negotiations may appear improbable, sometimes the parties understand the perspectives of resolving the problems after mediation and are more successful in finding a joint solution.

When is Divorce Mediation Not Recommended?

When considering divorce mediation, weighing various factors and risks is vital. While divorce mediation can benefit many couples, it may only suit some situations.

Below are the most common circumstances when spouses shouldn’t go with mediation.

• There is a history of abuse and domestic violence, or the couple’s communication might include threats of physical harm.
• Mediation won’t be effective if you have a high-conflict divorce and cannot discuss your differences in a productive, calm atmosphere.
• If one spouse has a mental condition or a substance abuse problem, it will be challenging to determine whether they make rational decisions during mediation.
• There is a possibility of hiding property and not being honest regarding assets and debts, which could require a thorough investigation.
• One or both spouses cannot overcome their frustration with divorce, and their emotions interfere with sound judgment.
• There’s a power imbalance in the relationship where one spouse might try to compel the other to accept the unfavorable terms to get out of the marriage.
• When the process requires evidential proof or witness testimonies, divorce litigation is a more appropriate option than mediation.

Summary

Divorce mediation in California allows spouses to retain control over their divorce outcome rather than having their cases decided by a judge. Leaving important decisions to a judge means entrusting a stranger to make decisions that impact each party’s post-divorce life.

Mediation is a more favorable option for spouses and their children, as it reduces stress levels and protects privacy by having all negotiations in a confidential setting. In addition, this approach creates an environment where the couples feel safe discussing sensitive topics.

Thus, mediation can save spouses time and money by avoiding contentious litigation and seeking an amicable resolution to their divorce.