Divorce Mediation Frequently Asked Questions

Before we can discuss your case, it’s important that we schedule an appointment with both spouses being present. An ethical mediator is neutral and we believe that neutrality is the most important quality we can offer. If a mediator meets with just one party, that allows for an opportunity to become biased. That is why we only consult with both spouses being present – it’s so important that they begin this journey just as they began the marriage – together. It’s our goal to maintain the highest level of integrity in the process for both of you and that begins in our very first conversation. You’ve walked into this marriage together and our job is to make sure that you walk out together with as much compassion and decency as possible to start your next life in the best place possible. At the first appointment, you should expect to discuss your questions and major concerns about the divorce and mediation process as well as your objectives and how we can best work together to achieve them. Engaging a San Diego divorce attorney or San Diego divorce mediator is a very personal matter and during the consultation you should determine if you are compatible with us and if we are compatible with you as well.

Mediation is an alternative to traditional adversarial court-based divorce and this is our specialty at San Diego Divorce Mediation & Family Law. Mediation can be used for your divorce or to modify an existing divorce order such as child custody or spousal support that may need to be adjusted given new circumstances. The parties work with our neutral third party mediator attorneys to negotiate a mutually agreeable settlement to avoid the unnecessary stress, conflict, delays and expense of traditional litigation. Mediation allows both spouses to speak with a neutral attorney at the same time in order to resolve any disputed issues and move toward mutual agreement and complete the divorce process. Mediation can cover a wide range of issues, and it can be done in person, on zoom or by telephone. At the end of the mediation process, our mediating attorney will draft your agreement which the parties then sign and the Court will review and approve it. Once the Court has approved the agreement, it is a Court order that both parties must abide by. Mediation allows each party to have control over the outcome of the case rather than requesting a Judge to make orders in their case.

During our free initial consultation, our goal is simply to educate you on your process and your options for divorce and to really explain the benefits of mediation and how litigation would differ dramatically in time, expense, and heartache on you and the family as a whole. In discussing options, we will communicate the differences between litigation and mediation, and the benefits of a peaceful transition. But neither spouse needs to know in advance of that consultation if they want to mediate or not, they just need to be willing to learn and understand the options.

Yes we can help work through even the most complex matters. Many of our cases involve complicated circumstances which can be negotiated and resolved with our skilled experienced mediators. If necessary, we will bring in the same experts, advisors, and coaches that are part of an experienced litigator’s team but we can do this at a far reduced cost to our clients.

Court-ordered mediation is a mandatory mediation session ordered by a judge during a divorce proceeding. Court ordered mediation is something all judges will order if your case gets far enough along that trial is looming. It typically occurs well into litigation after the parties have lost significant money and time. It lasts less than one hour and the parties have no choice in picking the mediator as the Court will simply schedule whoever is available without consideration of fit for the parties. At the end of court-ordered mediation, the court-selected mediator will provide a written report to the judge to explain the progress of the case. There is no follow up or continued discussion with this mediator as the parties will have the hour with them and that will be it. Private mediation typically is done as the first step when parties decide to divorce and thus these parties have the opportunity to save time, money and emotional harm. Couples who participate in private mediation will address all aspects of their divorce and the entire process is confidential and controlled by the parties. The mediation sessions in our office last 90 minutes and are scheduled weekly so the parties have time between meetings to research, consult with advisors and do any homework assignments assigned during the meetings. The parties also choose the mediator and so they will agree on someone they each feel comfortable speaking to and believe that this person has their best interests. The mediator will also handle all the Court paperwork and drafting and filing of documentation and agreements so that you never have to go to Court and simply review and sign all the documents as opposed to creating and drafting them yourselves. Simply stated, this process is much healthier than the abruptness of Court-ordered mediation.

Mediation is much less time-consuming than going to trial for your divorce. Some couples work through all divorce-related issues in one session, while others may meet multiple times before reaching an agreement. The amount of time you spend in mediation depends on how well you communicate and what issues you need to resolve.

There are many creative techniques that we’ve implemented to help parties negotiate fair agreements. We can help you and your spouse as well. We are passionate mediation practitioners who train and practice to be the best for our clients.

Often our clients are represented by attorneys during their mediation. These attorneys work with our clients on a consulting basis. Some clients seek out advice from their attorneys throughout the entire mediation process whereas others wait until we’ve drafted a settlement agreement to meet and review that agreement with their attorney.

The first step is to identify all your property and to figure out what’s in the pool and what’s outside of the pool. Anything inside the pool is community property to be split evenly and if there are items outside the pool, those will be kept by the owner as separate property. Community property. All property that you and your spouse acquired through labor or skill during the marriage is, at least in part, community property. Each spouse owns half of the community property. This is true even if only one spouse worked outside of the home during the marriage-and even if the property is in only one spouse’s name. With few exceptions, debts incurred during the marriage are community debts as well. This includes credit card bills, even if the card is in your name only. Student loans are an exception and are most often considered the separate property debt of the person taking the loans, although there are exceptions to this as well. Community property possessions and debts are divided equally unless you and your spouse agree to an unequal division-or unless there are more debts than assets. Separate property. Separate property is property acquired before your marriage, including rents or profits received from these items; property received after the date of your separation with your separate earnings; inheritances that were received either before or during the marriage; and gifts to you alone, not you and your spouse. Separate property is not divided during dissolution. If you have separate property that has been mixed with community property, it can be difficult to untangle, however you are still entitled to receive your separate property back even if it has been mixed. There are complex tracing requirements where property has been mixed. Debts incurred before your marriage or after your separation are considered your separate property debts as well.

Once a divorce is filed and served, there are temporary restraining orders (rules prohibiting both of you from doing certain things) that go into effect automatically at that time. These “ATROS” are on the reverse side of the Summons form and cover protections regarding minor children, insurance, property, and instruments that transfer property at death. For example, neither of you will be allowed to take your minor children out of state without the other spouse’s written permission or a court order. Nor will either of you, in most instances, be allowed to cancel or change the beneficiaries on your insurance policies or transfer property. And you will be required to notify your spouse before any out-of-the-ordinary spending.

At the end of your divorce, you are legally single and able to remarry or conduct your life as you desire. A legal separation alternatively does not terminate your marriage status and so you remain legally married and not able to marry another person. The same exact set of issues must be addressed in legal separation as in a divorce, and so a legal separation is not an easier or different process in any way. Legal separation is most often appropriate where there is a religious reason to not divorce or if there is a chance that the parties will get back together but desire in the meantime to agree on how to separate their assets and debts. Both parties must also agree to pursue a legal separation. If the responding party wishes to pursue a divorce rather than a legal separation, the moving party does not have a choice.

To file your divorce, either one of the spouses must have lived in the State of California for 6 months and lived in the county for 3 months. In all cases, your marital status cannot be terminated any earlier than six months after your spouse is served with the divorce papers. So while in mediation all the work of your divorce may be done after just a week or few weeks, the marital status cannot terminate earlier than this 6 month period. The fees paid up until and including the dismissal of the case are non-refundable, if we have sessions left then we will prorate the cost