Before Signing a Mediated Divorce Agreement in California: What to Review First

Before you and your spouse sign a mediated divorce agreement in California, four things are commonly reviewed: whether both of you have served the required financial disclosures, whether the agreement covers your property, debts and support clearly, whether it is written, signed and states it is enforceable or binding, and what it cannot change, such as the six-month waiting period.

You and your spouse have done the hard part. After weeks or months of conversations about the house, the accounts, the children's schedule and the monthly numbers, there is a draft on the table, and now the question is whether it is ready to sign. Most people facing this process feel a mix of relief and unease at this point: relief that an agreement exists, and unease about signing something permanent without knowing exactly what makes it hold up or what it might have missed. This guide walks through that review in order, from what a mediated agreement is to the limits no agreement can change.

The review below has five steps, followed by a typical timeline, common complications and the situations where mediation may not fit. It applies whether you are mediating in San Diego County or online from anywhere in California.

Before You Start: What a Mediated Agreement Is — and What It Is Not

Under Evidence Code section 1115, mediation is a process in which a neutral person helps the disputants communicate so they can reach a mutually acceptable agreement, and a mediator is that neutral person. The mediator does not represent either of you, does not advocate for either of you, does not act as either spouse's lawyer and does not decide anything for you. The terms on the page are the terms the two of you accepted.

A mediated agreement is a contract between the spouses. It is not a court order. It becomes one only when a California court incorporates it into a judgment of dissolution, the court's final decision ending the marriage.

Either spouse may have a lawyer of their own. Neither of you is required to have one, and neither of you is barred from having one.

Confidentiality matters here too. Under Evidence Code section 1119, what is said and written for the purpose of a mediation is generally not admissible or subject to discovery in later civil proceedings, except as the Evidence Code's mediation chapter otherwise provides. That protection is not absolute. Evidence Code section 1123 lets a signed written settlement agreement be admitted or disclosed in certain situations, covered in Step 3, and the mediation confidentiality rules have other limits as well. The chapter also does not apply to the court's own child custody mediation under Family Code section 3160 and the sections that follow it (Evidence Code section 1117(b)).

Step 1: Confirm Both Spouses Have Completed Financial Disclosure

Mediation does not remove, shorten or informally replace the duty of financial disclosure. California requires each spouse to disclose assets, debts and income on sworn declarations, whether the couple mediates or not.

The preliminary declaration of disclosure. Under Family Code section 2104, each spouse serves a preliminary declaration of disclosure, signed under penalty of perjury, with the petition or response, or within 60 days of filing it, unless the parties extend that time by written agreement or the court extends it by order. When the petitioner served the summons and petition by publication or posting under a court order, and the respondent files a response before a default judgment is entered, the petitioner has 30 days from that response. The preliminary declaration includes the tax returns the declarant filed in the two years before serving it.

The final declaration of disclosure. Under Family Code section 2105(a), except by court order for good cause, each spouse serves a final declaration of disclosure and a current income and expense declaration before or at the time the parties enter into an agreement resolving property or support issues other than temporary support, or, if the case goes to trial, no later than 45 days before the first assigned trial date. For a mediating couple, that usually means before or at signing.

Waiving the final declaration. The final declaration can be waived only if the waiver is mutual, never by one spouse alone, and the waiver must be executed under penalty of perjury in open court or by separate stipulation and must include the representations Family Code section 2105(d) lists.

These sworn declarations carry weight. Perjury in either declaration, or in a waiver, can be grounds to set aside all or part of the judgment, and Family Code section 2122 generally allows a motion based on that perjury within one year after the other spouse discovered, or should have discovered, it.

Step 2: Review What the Agreement Covers — Property, Support, and Debts

This is the step where the abstract becomes concrete: the agreement is the list of who keeps what, who pays what and how the children's time is shared. A spouse reading the draft typically checks it category by category.

Community property and debts. California is a community property state. Under Family Code section 2550, the court divides the community estate (property and debts acquired during the marriage) equally, except on the written agreement of the parties, an oral stipulation in open court, or as the Family Code otherwise provides. That is why a mediated agreement can divide things differently, if both spouses agree in writing.

Valuation date. Property is not valued as of the date of separation by default. Under Family Code section 2552, the court values assets and liabilities as near as practicable to the time of trial, and, on 30 days' notice by the moving party to the other party, may for good cause value all or part of them at a date after separation and before trial. An agreement reflects whatever values the spouses accept, so it helps to know what those values are based on.

Separate property reimbursement. Under Family Code section 2640(b), a spouse is reimbursed for contributions to the acquisition of community property traced to a separate-property source, unless that spouse has made a written waiver of the right or signed a writing that has the effect of a waiver. Contributions include downpayments, payments for improvements and payments that reduce the principal of a loan used to buy or improve the property, but not interest, maintenance, insurance or taxes. The reimbursement is paid without interest or adjustment for changes in the value of money and cannot exceed the property's net value at the time of division. A separate rule, often called Moore/Marsden apportionment, addresses the opposite situation: community money paying down a loan on one spouse's separate-property home.

Businesses and retirement plans. A business's value can include goodwill, and that value is decided on the evidence, often with experts. For retirement plans, Family Code section 2610 directs the court's orders to give each spouse a full community share of any retirement plan, except as its subdivision (b) provides.

Spousal support. Agreements commonly state the amount, the duration and whether support can be modified later.

Child support. Under Family Code section 4065(a), parents may agree on child support, but the agreement is subject to court approval, and the court does not approve an amount below the guideline formula unless the parents declare all of the following: they are fully informed of their rights concerning child support; the order is agreed to without coercion or duress; the agreement is in the children's best interests; the children's needs will be adequately met by the amount; and the right to support has not been assigned to the county and no public assistance application is pending.

Some couples ask about summary dissolution, a simplified procedure for qualifying marriages. Its dollar limits are set by statute and adjusted periodically under Family Code section 2400(b).

Step 3: Check That the Agreement Meets California's Enforceability Requirements

Evidence Code section 1123 sets the test. A written settlement agreement prepared in, or pursuant to, a mediation is not made inadmissible or protected from disclosure by the mediation confidentiality rules if it is signed by the settling parties and any one of these conditions is met:

• The agreement says it is admissible or subject to disclosure, or words to that effect.
• The agreement says it is enforceable or binding, or words to that effect.
• All parties expressly agree in writing, or orally as the Evidence Code allows, to its disclosure.
• The agreement is used to show fraud, duress or illegality relevant to an issue in dispute.

In practice, this means the agreement is written, signed by both spouses, and usually states plainly that it is intended to be enforceable and binding. An oral understanding, or an unsigned draft, does not meet the test. It also means a signed agreement with that language is not always private or always inadmissible. The rules on whether a mediated agreement is binding follow from this section.

Code of Civil Procedure section 664.6 is a related mechanism: when parties to pending litigation stipulate to a settlement in a signed writing, or orally before the court, the court may, on motion, enter judgment on its terms. In family law matters, that signed writing must be signed by the parties themselves, not by an attorney on a party's behalf. In a divorce, the agreement becomes a court order once the court incorporates it into the judgment. For how the signed terms are typically structured, see the overview of the divorce mediation agreement.

Step 4: Understand the Six-Month Waiting Period and What the Agreement Cannot Change

Under Family Code section 2339, a judgment of dissolution does not end the marriage until six months have passed from the date the summons and petition are served or the date the respondent appears in the case, whichever occurs first. The period does not run from filing, and the court may extend it for good cause. A signed agreement does not shorten or waive it.

The agreement also cannot eliminate the disclosure duties of Family Code sections 2104 and 2105, and its child support terms remain subject to court approval under section 4065(a).

Custody follows its own track when it is contested. Under Family Code section 3170, if a pleading shows that custody or visitation is contested, the court must set those issues for mediation, and Family Code section 3160 requires each superior court to make a mediator available. In San Diego County, that is child custody recommending counseling with the Family Court Services of the Superior Court of California, County of San Diego. Under Family Code section 3183(a), except as section 3188 provides, that mediator may, consistent with local court rules, make a recommendation to the court if it is first given in writing to the parties and their attorneys before the hearing. Family Court Services says that if no agreement is reached, the counselor makes a recommendation and the hearing proceeds; the judge decides. Those court proceedings are private and confidential under Family Code section 3177, not under Evidence Code section 1119. Domestic violence cases are handled by Family Court Services under a separate protocol approved by the Judicial Council (Family Code section 3170(b)).

Family Court Services is part of the court. Private divorce mediation, including Simple Divorce Mediation, is separate from it and is not connected to the court or any government program.

Step 5: Consider Whether to Have an Attorney Review the Agreement Before Signing

Either spouse may consult or retain an independent attorney before signing. Neither is required to, and neither is prohibited from doing so. An attorney who reviews the agreement acts as that one spouse's advisor; the mediator stays neutral and represents neither of you.

Evidence Code section 1129 applies when an attorney represents a spouse in the mediation. The attorney must give the client a printed disclosure of the confidentiality restrictions in section 1119, and get the client's signed acknowledgment, as soon as reasonably possible before the client agrees to participate, or as soon as reasonably possible after being retained if retained later.

An independent review can address whether the terms reflect California law, whether the disclosures look complete and whether the language is clear enough to carry out. It cannot change the mediator's role or make decisions for the couple. For finding legal help, the State Bar of California offers a lawyer referral service at calbar.ca.gov, and the California Courts Self-Help Guide is at selfhelp.courts.ca.gov.

Typical timeline

The sequence is more predictable than the duration. Preliminary disclosures are due under Family Code section 2104's timing rules. Final disclosures are due before or at signing unless mutually waived. After signing, the agreement is submitted for the court's judgment, and the marriage ends no sooner than six months after service or the respondent's appearance, whichever came first. How long each stage takes depends on the couple, the issues and how quickly documents come together. The steps after mediation cover that later stretch in more detail.

When the process gets complicated

You agree on some issues but not all Agreed terms can be put in writing while others stay open. A partial agreement in mediation still carries the disclosure duties described above.

Custody is contested Contested custody or visitation goes to the court's mediation under Family Code section 3170, even if property is settled privately.

A business or retirement plan is involved Values may depend on expert evidence, and retirement division follows Family Code section 2610.

Something changes after signing Whether terms can later change depends on timing and subject, including set-aside grounds under Family Code section 2122.

When Mediation May Not Be the Right Path

If you are in immediate danger, call 911.

Where there has been domestic violence, coercion or a protective order, safety comes first, and mediating with the other spouse may not be appropriate. Mediation may not be right for every couple; whether it fits depends on the couple and the issues. It may take less time, cost less or feel less stressful than court for some couples, depending on their circumstances, but that is not a given. The limits are set out more fully in the discussion of the disadvantages of mediation.

Talking Through Your Draft Agreement

Before signing, the details that matter are whether disclosures were exchanged and on time, whether the property and support terms say what both of you mean, and whether the agreement contains the language Evidence Code section 1123 looks for. A consultation can cover how divorce mediation in California handles those questions, in San Diego County or online anywhere in the state, and what issues commonly remain open at the pre-signing stage. If you and your spouse are still deciding whether to mediate at all, that conversation can start there too.

To talk through where your agreement stands, call Simple Divorce Mediation at 858-330-1378 for a joint mediation consultation.

About this article. Reviewed by Amy J. Lass, CA Bar No. 246779. Last updated 2026-10-08.