The California Divorce Process and Mediation: How It Works

If you and your spouse mediate, a California divorce still follows the same legal path: one of you files a petition, the other is served, both exchange sworn financial disclosures, and a judge enters a judgment. Mediation is how you reach the agreement inside that path, with a neutral person helping you talk.

Most people facing this question are at an unsettled point. You and your spouse may have decided the marriage is ending, or one of you is reading on behalf of both, trying to picture what happens next without turning it into a courtroom contest. You may be wondering whether mediation is a shortcut around the court, what the law still requires of you, and where the house, the children and the money fit in. This article walks through each piece in order, the way the process actually unfolds in San Diego County and, through online mediation, anywhere in California.

What Divorce Mediation Means Under California Law

California defines mediation in Evidence Code section 1115 as "a process in which a neutral person or persons facilitate communication between the disputants to assist them in reaching a mutually acceptable agreement." The same section defines a mediator as "a neutral person who conducts a mediation." In plain words, the mediator helps you and your spouse talk through each issue so that the two of you can reach terms you both accept.

That definition also tells you what a mediator is not. A mediator does not represent either spouse, does not advocate for either of you, and does not decide anything. The decisions stay with you and your spouse. Either of you may have a lawyer of your own during mediation, and neither of you is required to have one.

Private divorce mediation is also different from the custody mediation run by the court. Under Family Code section 3170, when it appears from a petition or other filing that custody, visitation or both are contested, the court must set those contested issues for mediation. That court process is not voluntary. In San Diego County it is child custody recommending counseling with the court's Family Court Services, which calls the person conducting it the Family Court Counselor.

Under Family Code section 3183(a), except as provided in section 3188, that court mediator may, consistent with local court rules, submit a recommendation to the court about custody or visitation, but only after first giving the recommendation in writing to the parties and their attorneys, including counsel for any minor children, before the hearing. A mediator with that authority is called a child custody recommending counselor. Family Court Services says that if no agreement is reached, the counselor makes a recommendation and the court hearing proceeds. The judge decides.

Simple Divorce Mediation is a private practice. It is not connected to the court, Family Court Services or any government program. For a fuller picture of how the private process works locally, see the overview of divorce mediation in San Diego.

The Legal Framework: Filing for Divorce in California

Family Code section 2310 sets out the grounds for divorce, and California does not ask either spouse to prove fault. The two grounds are irreconcilable differences that have caused the irremediable breakdown of the marriage, and permanent legal incapacity to make decisions. Irreconcilable differences simply means the marriage has broken down in a way that cannot be repaired. Most divorces rest on that ground.

Residency comes next. Under Family Code section 2320, a judgment of dissolution generally may not be entered unless one spouse has lived in California for six months and in the county where the case is filed for three months immediately before the petition is filed. Both conditions apply together, and only one spouse needs to meet them.

The case itself begins when one spouse, called the petitioner, files a petition and a summons is issued. The other spouse, called the respondent, is then served and may file a response. Mediation can happen alongside these steps; it does not replace them.

Where a case is filed and which court's rules apply depend on your circumstances, including where you and your spouse live. Family law cases in San Diego County are heard by the Superior Court of California, County of San Diego. Couples elsewhere in the state file in the superior court of the county that fits their situation. The California courts' self-help site describes the general steps for each.

The Six-Month Waiting Period and What It Does — and Does Not — Do

Family Code section 2339 sets a waiting period that surprises many couples. No judgment of dissolution is final for ending the marriage until six months have passed from the date the respondent was served with the summons and petition or the date the respondent appeared in the case, whichever occurs first. The clock does not start on the day of filing. The court may also extend the period for good cause.

Six months is the earliest point at which the marriage can end. It is not a promise that your divorce will be final at that point, and how long any particular divorce takes depends on the couple and the issues.

The waiting period does not put mediation on hold. You and your spouse can keep meeting, work through each issue and have an agreement drafted while the six months run. A couple can reach a mediated agreement well before the period ends; the judgment simply cannot end the marriage until the period has run. The page on the divorce mediation timeline looks at how these pieces line up.

Financial Disclosure: What California Law Requires of Both Spouses

Mediation does not remove the duty of financial disclosure. California requires each spouse to serve sworn declarations of disclosure, and mediating does not let either of you skip, shorten or informally replace them.

The first is the preliminary declaration of disclosure, a sworn statement of assets, debts, income and expenses. Under Family Code section 2104(f), the petitioner serves it with the petition or within 60 days of filing the petition, and the respondent serves it with the response or within 60 days of filing the response, unless the spouses 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 to serve the preliminary declaration.

The second is 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 spouses 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. The same section warns that perjury on the final declaration may be grounds for setting aside the judgment or part of it.

The final declaration may be waived only by both spouses together, never by one spouse alone. Under Family Code section 2105(d), a mutual waiver must be executed under penalty of perjury in open court or by separate stipulation, and it must include the representations the statute lists, including that both spouses have complied with section 2104 and have completed and exchanged their preliminary declarations. The divorce mediation checklist covers the records couples commonly gather for these declarations.

Community Property, Separate Property, and How California Divides the Marital Estate

Family Code section 2550 sets the baseline: unless the spouses agree in writing or by oral stipulation in open court, or the law provides otherwise, the court divides the community estate equally. Community property is, in general, what either spouse earned or acquired during the marriage. Separate property is, in general, what a spouse owned before marriage or received by gift or inheritance, and it stays with that spouse.

Timing matters for value. Under Family Code section 2552, the court values the community's assets and debts as near as practicable to the time of trial. On 30 days' notice by the moving spouse to the other, the court may, for good cause, value some or all of them at a date after separation and before trial to divide the estate equally in a fair way.

Some property mixes the two. Under Family Code section 2640(b), a spouse who traces contributions to community property, such as a down payment or principal payments, to a separate-property source is reimbursed for them, unless that spouse has made a written waiver of the right to reimbursement or signed a writing that has the effect of a waiver. The reimbursement is paid without interest or adjustment for changes in the value of money, and it may not exceed the net value of the property at the time of division.

The opposite situation, where community money paid down the loan on one spouse's separate-property home, is a different question. It is commonly addressed through what is called Moore/Marsden apportionment, which can give the community a share of that home. It is not the section 2640 reimbursement rule.

A family business can raise its own questions. Its value can include goodwill, and that value is decided on the evidence, often with the help of experts. In mediation, you and your spouse work with the mediator to reach your own agreement on how assets and debts are divided. The mediator does not decide. The page on how a divorce mediation agreement comes together explains how those terms are written up.

Child Custody, Visitation, and Support in the Mediation Process

For parents, this is often the part of the divorce that carries the most weight. A parenting plan usually addresses two kinds of custody. Legal custody is who makes major decisions about a child, such as schooling and health care. Physical custody is where the child lives. Parents in private mediation may work out both, along with a visitation schedule.

Child support works differently. Under Family Code section 4065(a), unless federal law prohibits it, parents may agree on a child support amount, but the agreement is subject to the court's approval. 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 best interests of the children; the children's needs will be adequately met by the agreed amount; and the right to support has not been assigned to the county and no public assistance application is pending. Parents cannot simply agree to any amount.

If custody or visitation ends up contested in a filed case, the court's own mediation under Family Code section 3170, described above, applies. That is separate from private mediation with Simple Divorce Mediation. Under section 3170(b), domestic violence cases are handled by Family Court Services in accordance with a separate written protocol approved by the Judicial Council.

If you are in immediate danger, call 911. Where there has been domestic violence, coercion or a protective order, safety comes first, and no one in that situation is encouraged to mediate with the other spouse.

Mediation Confidentiality: What the Evidence Code Actually Says

Evidence Code section 1119 sets the general rule. Except as the Evidence Code's mediation chapter otherwise provides, anything said and any writing prepared for the purpose of, in the course of, or pursuant to a mediation is not admissible or subject to discovery in civil and other noncriminal proceedings where testimony can be compelled, and communications between participants in the mediation remain confidential. That protection is real, but it is not absolute.

A signed settlement agreement is the main example. Under Evidence Code section 1123, a written settlement agreement prepared in the course of, or pursuant to, a mediation is not made inadmissible or protected from disclosure by the mediation chapter if the spouses sign it and any of these is true: it says it is admissible or subject to disclosure; it says it is enforceable or binding; all parties expressly agree in writing, or orally as section 1118 allows, to its disclosure; or it is used to show fraud, duress or illegality relevant to an issue in dispute. Divorce agreements meant to become court orders often say they are binding, so they are generally not private in that sense.

Evidence Code section 1115(c) defines a mediation consultation as a communication between a person and a mediator for the purpose of starting, considering or reconvening a mediation or retaining the mediator. That definition is a legal category; it is not a statement that any particular conversation with a mediation practice is protected.

Spouses who bring their own lawyers have one more rule in play. Under Evidence Code section 1129, an attorney representing a spouse in mediation must, as soon as reasonably possible before the client agrees to participate, give the client a printed disclosure of the section 1119 confidentiality restrictions and obtain the client's signed acknowledgment; an attorney retained after the client has agreed to participate must do so as soon as reasonably possible after being retained.

When Mediation May Not Be the Right Path

If you are in immediate danger, call 911.

Mediation may not be right for every couple. Where there has been domestic violence, coercion or a protective order, safety comes first, and no one is encouraged to sit down and mediate with the other spouse.

Private mediation also depends on both spouses taking part voluntarily and being able to speak for themselves. If one spouse cannot participate safely or freely, or feels unable to say what they want without pressure, the process may not fit. That is a question about the couple, not a judgment about anyone.

Other paths exist, including each spouse working through the case with a lawyer of their own and asking the court to decide what the two of you cannot. The comparison of divorce mediation vs. litigation lays out what each path involves. Mediation may be faster, less costly or less stressful for some couples, depending on the couple and the issues, but it is not the answer for every divorce.

If You'd Like to Talk Through How the Process Fits Your Situation

The California divorce process has fixed parts, such as residency, the six-month period and the disclosure deadlines, and parts you and your spouse shape yourselves, such as how property is divided and how a parenting plan reads. A conversation can look at which issues are in play for the two of you, whether you are in San Diego County or elsewhere in California through online mediation, and how mediation could fit around the steps the law already requires. Mediation may not be right for every couple, and that conversation is a place to think it through without pressure.

When the time feels right, you and your spouse can call Simple Divorce Mediation at 858-330-1378 to arrange a joint mediation consultation.

About this article. Reviewed by Amy J. Lass, CA Bar No. 246779. Last updated 2026-10-04.