California Divorce Mediation

How is Divorce Mediation in California conducted?

While there are a few limited options for California couples wishing to involve the courts in their divorce without a full-blown trial, mediation for divorce is traditionally conducted privately.

If you choose to mediate, you would hire a private mediator in California typically before you file with the court.

With the mediator's help and guidance, all of the issues surrounding your divorce (parenting plan, child support, alimony / spousal support, property division) would be identified, discussed, negotiated and resolved confidentially in your mediation session or sessions, instead of a litigated divorce in court and involvement of a family law attorney.

On the other hand, if you litigate your divorce dispute through the California court system, you will be limited to a mandatory mediation process which includes child custody mediation only.

So if you and your spouse were to disagree on any financial matters, you'd be on your own to resolve them, or would need to hire a private neutral third party mediator or a family law attorney to assist. Therefore, mediating through the courts in California is an incomplete solution.

 

 

What is the California divorce mediation process?

Since no two mediators are alike, the California mediation process will vary from mediator-to-mediator (and some don't employ any process at all). But at a very high level, here's our mediation process:

• The parties (you and your spouse) would engage the services of our California divorce mediator (instead of traditional divorce litigation or collaborative law using attorneys,) to help you resolve all of the issues required for your divorce case.
• We call the first phase of our process Financial Discovery, and it's all about preparing for your negotiations. We'll ask you to complete a balance sheet listing your marital assets and liabilities, budgets outlining your current living expenses as well as your projected expenses after your divorced and living separately, and gather some additional financial documents. Doing this sets a solid foundation for the negotiations that will follow and improves the thoroughness of your mediated agreement.
• Once you've completed your Financial Discovery, you'll enter our negotiation phase. Here, the mediator will guide you through a series of discussions surrounding the issues that need to be resolved in your divorce. In areas of disagreement, Joe will use his skills and expertise to help you negotiate and reach agreement on all the necessary issues.
• Upon reaching agreement, your mediator will then draft a complex written document called a Memorandum of Understanding (MOU), outlining everything you discussed and agreed upon during your negotiations. There is also a host of supporting documentation Joe will draft to go along with the MOU.
• Once the mediator issues your MOU, your mediation will be completed.
• Upon completion of the mediation process, you and your spouse are each encouraged to have your agreement reviewed by your own respective attorneys, however it is ultimately your choice to do so.
• A filing professional would then prepare the court filing, divorce petition, and all other related court required paperwork. In California, there are both attorney and non-attorney filing professionals.
• Upon the court receiving the proper documentation and filing fees, a judge will grant the divorce a few months later.

 

 

What are the issues that need to be resolved during divorce mediation California?

For couples with no children or grown children, there are two main issues that need to be resolved. For couples with minor children, there are four:

 

Creating a Parenting Plan:

In California, issues of parenting responsibilities and timesharing must be agreed upon and drafted into a parenting plan. The parenting plan covers all aspects of how you and your spouse will co-parent your children once you’re divorced.

First, you need to discuss and agree on where your children will spend nights, weekends, and holidays, (which is sometimes referred to as physical custody or child custody).

And while you may think developing a parenting plan is relatively straightforward, in our experience, doing so in California is quite complex.

Take for example our epic traffic.

It can turn even the shortest distances into marathon commutes!

But what if both of you can't afford to stay in the same area, but still want to share custody of your kids? Are you really going to ask your kids to sit in the car for hours while you shuttle them back-and-forth between houses? Or be able to get them to school on time if you're the parent who lives outside the school district?

Plus, according to an article in The New York Times, 45% of people living in California originally relocated from somewhere else.

So if a relocation with the minor children is something you wish to consider either now, or in the future, you'll need to be thinking about much more than where the kids will be spending nights and weekends.

Not only that, but what most people don't realize is the parenting plan also drives the determination of child support, alimony, and the division of marital assets and liabilities.

If you try to determine your parenting plan in a vacuum, without simultaneously having conversations about those other three topics, you'll find that your parenting plan just won't hold up and will need to be re-negotiated.

In addition to the physical custody issues, you'll also need to decide how you and your ex will engage in decision-making for your minor children, and come to agreement on matters such as education, religion, and medical issues, to name a few.

Given the recent global pandemic, agreeing on medical issues and treatment has become more challenging then ever before!

Because there is very little guidance for couples on how to create a balanced and effective parenting plan, the help of an experienced and professional mediator to guide you through the decision-making process is critical in this very gray area.

 

To learn more about how parenting plans work and why they’re the most important issue you’ll face in your divorce, read: Divorce with Kids: The Importance of a Good Parenting Plan.

 

Determining California Child Support:

Here in the United States, all 50 states are required to have some sort of repeatable method for determining child support - known as a child support guideline.

How child support is determined varies greatly from state-to-state, and each state's model produces a significantly different result. That's why you must follow the California Child Support Guidelines and not one from another state.

California uses something called the “income-shares” model which uses a number of factors to determine a basic child support amount, and allocates a portion of that amount to each party (parent). It is non-taxable, and the basic child support amount in CA typically excludes a number of other “extraordinary expenses” such as college, and extracurricular activities, which must be negotiated separately.

Determining child support in California is not as simple as running a calculator and coming up with an amount.

Far from it!

For example, did you know that the amount the child support guidelines in CA output are the same for all 58 counties?

Sure, that might work if you live in one of the northern or eastern counties. But, what if you're like many of our client couples and live in San Jose, Los Angeles or San Diego county - where the cost of living is nearly two and a half times the California average!? And with two households being more expensive to run than one, relocation from a higher to lower cost of living area (or out of California entirely,) becomes not only a distinct possibility, but may become a necessity.

Which adds even more complexity to agreeing to a parenting plan.

Then there's the issue of extraordinary expenses.

The State of California allows divorcing parents to decide if they'll stop supporting their children once they graduate high school, or continue supporting them until they graduate college. We find that many parents disagree on this one.

So for these, and many other reasons, it’s important to work with a neutral third party mediator with a financial background - to ensure your children get the financial support they need and don’t become the economic victims of your divorce.

 

To learn more about how child support works in California, read: California Child Support: More Complex Than You Think.

 

Determining Alimony in California:

In California, the payment of money from one ex-spouse to the other ex-spouse is referred to as alimony or spousal support. Alimony in California is different from child support in that it is to be used by the recipient party (spouse) to assist with their expenses and not the children's.

And there is no California alimony guideline by which to determine it.

Although oddly enough, there is a guideline to determine “spousal support” which is defined as monies paid from one spouse to the other while the divorce process is unfolding.

Adding to the challenge of agreeing on alimony is the extremely high cost of living in California.

Because even if you were able to make ends meet while living together, it's going to get markedly more difficult to do so when living apart. Which may force one, or both of you to have to relocate from where you live now to somewhere else more affordable.

And if you have children, a relocation will cause you and your spouse to have to renegotiate any previously agreed upon parenting plan or child support agreements as all three topics (parenting, child support and alimony) are tied together in California.

But just because there isn’t a guideline or other repeatable way to determine alimony in California, it doesn’t mean all hope is lost and you're doomed for litigation. A competent mediator will have a number of ways to you and your spouse resolve this difficult and emotional issue and come to agreement.

 

To learn more about how alimony works in California, read: Determining Alimony in California.

 

Resolving California Community Property:

The division of marital assets and liabilities is typically the last issue mediating couples will need to discuss, make decisions on, and resolve, in their California divorce.

In the United States, there are two methods used to divide marital assets and liabilities in divorce: equitable distribution and the concept used in California known as community property.

California is a “community property state” meaning marital assets and liabilities are split 50-50 unless the parties come to agreement otherwise on their property division.

At first you may think that dividing all marital assets and liabilities should be easy if they are to be split equally. But the parties can agree otherwise, so equal is not always the case. It’s really up to you and your spouse to decide if the split of your marital assets and liabilities is going to be 50-50.

The good news is that when you're mediating, you can negotiate an outcome each spouse finds fair, and you have a lot of flexibility.

You also have to determine what marital property is, what the difference between marital and separate property is, and what happens when separate property is converted into community property or vice versa.

None of which is very easy to do.

Once you've got that all figured out, you now need to value all of your community property.

Which is also challenging!

Let's say you and your spouse own a house and one of you wants to buy the other out. Since the year 2000, housing prices are up 200%, with two years (2013 and 2020) registering gains of at least 30% year-over-year).

So what happens if you paid your now ex-spouse a premium to buy them out and then the very next year after your divorce has been finalized, there's another market bubble just as there was in 2009 where housing prices in California plummeted 25%?

Is there anything that can be done during your divorce negotiations to ensure this doesn't happen? (The answer is yes if you work with an experienced mediator)

Here's another example:

Despite a recent wave of relocations by tech companies to Austin and Miami, Silicon Valley (and California in general), is still the tech capital of the United States.

So if you live and work for a tech company in the greater San Jose area, it's common to own complex, non-traditional assets such as private company stock.

But given that these stocks don't trade on the open markets and are often illiquid (but still subject to community property division,) how do you value (and share) them during your divorce negotiations?

And what about the tax implications of doing so?

If you work with experienced California mediators with a financial background, you can avoid making costly and significant mistakes in this complicated part of the divorce negotiation process.

 

To learn more about how community property works in California, read: California Community Property and Divorce: Not Always 50-50.

 

 

Do I also need a divorce lawyer if I am working with a mediator in California?

Some people choose to speak with a divorce lawyer during or after mediation is completed, while others explicitly choose to get a divorce in California without a lawyer.

This is your divorce, so if you’d like to get a lawyer’s perspective on a particular issue(s), you are encouraged to do so.

 

 

Do my spouse and I have to be in agreement on any or all issues before starting the California divorce mediation process?

No! You are not required to have everything decided before starting mediation.

In fact, many divorcing couples specifically wait for the mediator to help them discuss and resolve the issues.

This way, they can ensure all issues will be discussed thoroughly - in the proper order and given the time and attention they require.

 

 

Will California mediation work in complex cases?

While we can’t speak for all California mediators, for us the answer is a resounding yes!

Given our expertise working with couples divorcing after a long-term marriage, divorce with a business involved, and those involving high assets, complicated compensation, variable compensation and deferred compensation issues, and gray divorces, most cases we handle have a high degree of complexity.

 

 

How is working with a mediator in California different than collaborative divorce?

While both the divorce mediation process and collaborative process choose to focus on keeping a couple out of court, there are a significant number of ways in which they are different.

That's why we wrote this article about mediation vs the collaborative process to help you understand the differences between the two divorce options, and the advantages we believe mediation provides.

 

 

What’s the difference between a California divorce mediator and a divorce mediation attorney?

Mediators come from a variety of different backgrounds. Some are attorneys, some are mental health professionals. While others, like Joe, have a financial background.

 

 

Can a mediators in California give me legal advice or tell me what to do?

No. A mediator cannot give you legal advice - even if they are an attorney-mediator. In their role as a neutral third party, they must not provide legal advice.

Read our helpful article to learn more about the differences between mediators California and lawyers for divorce.

 

 

What does mediation for divorce in California cost?

If you’re wondering what does divorce mediation cost in California, you may be focusing on the mediator's hourly rate, or in our case, flat-fee.

And while those things will contribute to the cost, there are a number of other equally, if not more important factors contributing to costs that most people don’t realize.

One factor in the cost of mediation for divorce in California is the experience of the mediator.

Maybe you’re thinking, “Well of course the more experienced a mediator is, the higher their fees will be.” But that’s not what we’re talking about here.

Because an experienced mediator is going to be sure to cover all present and future issues upfront, and guide you and your spouse to agreement on what to do now, and/or when something changes in the future, you’ll avoid having to return to mediation (or worse yet, court) and spend more money down the line.

I'm sure it will come as no surprise that ex-spouses are far less cooperative negotiating post-divorce than spouses are while negotiating in mediation at the time of their divorce. Forget to cover something in mediation, and you’re looking at somewhere between $10,000 and $20,000 to resolve a missed issue and modify your divorce decree. So the more thorough your settlement agreement is at the time of your divorce is a cost-avoidance for you!

Another factor is attributed to the services included in the mediation.

For example, some mediators like us include emotional support / divorce coaching in our mediations, whereas others do not.

Experienced mediators draft a thorough and comprehensive written agreement, whereas others write up a basic agreement that needs to be re-written by attorneys for an additional cost.

And speaking of attorneys, some mediators require each spouse to retain an attorney to review their settlement agreement, while others who believe in the power of self-determination, do not.

You can work with an inexperienced mediator for divorce in California for what you consider to be a low fee, but then once mediation is completed, spend another $3,500 - $5,000 to have your agreement re-drafted by an attorney, and/or another $10,000- $20,000 in the future to resolve missed issues. Or you can work with an experienced mediator whose fees may be higher, but who provides a more comprehensive service, written agreement, and resolution on both present and anticipated future issues, which will save you money (and time and stress) in the long run.

So while the total cost of divorce mediation in California generally ranges from $6,000 to $10,000 (the mediator's fee, filing professional's fee, court fees), how much you pay to each practitioner, how many practitioners are involved in the process, and how much you’ll need to pay in the future to correct past omissions or mistakes, is going to vary greatly.

To learn more, read: The Real Truth Behind Divorce Mediation Costs

 

 

How long does a divorce in California take using mediation?

While the length of CA divorce mediation varies by couple and the complexities of their case and interpersonal dynamics, generally speaking, mediation with us can be completed in 8-12 weeks.

That includes time for you to complete financial discovery, meet with the mediator for typically 2 to 4 mediation sessions, give the mediator time to draft your written agreement (MOU), and for you to have time to review it and provide feedback.

 

 

How do I know if mediation is a viable option for my California divorce?

Mediation is a viable option for your California divorce if:

• There is a degree of mutual respect between you and your spouse and you are both willing to actively participate - this is because mediation is a voluntary process;
• You and your spouse are both willing to engage in an honest, transparent and “good faith” negotiation including full financial disclosure;
• You want an experienced professional mediator to help you identify, discuss and negotiate the required issues, but you want to make your own decisions, retain full control over your divorce agreement, and avoid litigation and/or attorney involvement;

Where are Equitable Mediation's California Divorce Mediation Locations?

If you or your spouse live anywhere in the state of California, you can mediate your no-fault divorce with Joe using our convenient online divorce mediation format.

While most California divorce mediators only recently began practicing online as a reaction to the Covid-19 pandemic, we’ve been mediating online since 2011!

 

Other Questions About Divorce in California:

In California, do the parties have to go to court to get a divorce?

No. There is no requirement that the parties go to family court in California order to get a divorce provided the proper information is exchanged between the parties, all issues and disputes are resolved and agreed upon, and the proper paperwork such as your Marital Settlement Agreement and divorce petition is drafted and filed with the California family court system.

 

What are the residency requirements in a divorce in California?

In order to file for divorce in California, you must be a resident of the state for six (6) months, and the county you wish to file in for three (3).

If you’ve recently moved, and don’t yet meet the California residency requirements, you can always begin the mediation process, work through the issues with the guidance of your mediator, and then file your divorce or legal separation. In our experience, parties can come to resolution on all issues, and have a settlement agreement in hand, within four to six months. Thus allowing time to pass, and moving the parties closer to meeting the residency requirements.

 

What's the difference between family law mediation and divorce mediation in California?

While the terms can sometimes be used interchangeably, “family law mediation” is the broader of the two.

For example, family law mediation may be used to help non-married California parents make decisions on, and resolve issues of child custody. In this case, since they were never married, there would be no “divorce” in the mediation process.

While any topic involving the family may be brought to resolution using a mediator, could fall under its umbrella, divorce mediation refers to a specific alternative dispute resolution process focused on ending the parties’ marriage.

 

Can I still mediate if domestic violence is an issue?

If you and your spouse are not permitted to be in the same room with each other, but are permitted telephone contact with each other, then our online mediation process may be an option if there is domestic violence or a power imbalance in your relationship.