Divorce Mediation Questions: What California Couples Ask Before They Start

Divorce mediation is a process in which a neutral person, the mediator, helps you and your spouse communicate so you can reach an agreement on the issues in your divorce. Evidence Code section 1115 defines mediation 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 agreement belongs to the two of you. Nothing is settled unless you both accept it.

A mediator runs the conversation, helps each spouse be heard, keeps the discussion on the issues, and helps you test options until you find terms you both accept. Under Evidence Code section 1115, the mediator is a neutral person. That means the mediator does not represent either spouse, does not advocate for either spouse, does not act as either spouse's lawyer, and does not decide anything for you. Either of you may have a lawyer of your own, and some couples use attorney-assisted divorce mediation for that reason. Outside a class or representative action, an attorney who represents a spouse in mediation must give that client a printed disclosure of the confidentiality rules as soon as reasonably possible before the client agrees to participate, or as soon as reasonably possible after being retained if retained later (Evidence Code section 1129).

Yes, private divorce mediation is confidential under Evidence Code section 1119, except as the Evidence Code's mediation chapter otherwise provides. In general, what is said and written for or during the mediation cannot be used as evidence or obtained in discovery in a later civil case, and the communications between participants stay confidential. That protection is not absolute. A written settlement agreement prepared in the course of mediation and signed by the spouses can be admitted or disclosed under Evidence Code section 1123 if it says it is admissible or subject to disclosure; if it says it is enforceable or binding; if all parties agree in writing, or orally as the Evidence Code allows, to disclose it; or if it is used to show fraud, duress or illegality relevant to an issue in dispute. Our guide to divorce mediation confidentiality covers these limits in more depth.

Yes. Mediation does not remove the duty of financial disclosure, and it does not shorten or replace the declarations of disclosure. A declaration of disclosure is a sworn statement, signed under penalty of perjury, listing your assets, debts, income and expenses. Each spouse serves the preliminary declaration 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 (Family Code section 2104(f)). If 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 final declaration of disclosure and a current income and expense declaration are due before or at the time you 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, except by court order for good cause (Family Code section 2105(a)). You and your spouse may mutually waive the final declaration, but one spouse cannot waive it alone. 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.

No California divorce can end the marriage until at least 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 (Family Code section 2339). That period does not run from the filing date, and the court may extend it for good cause. Mediation can help you and your spouse reach agreement within that window, but reaching agreement does not shorten it. The full timeline depends on your issues, how quickly the disclosures are exchanged, and the court's own processing.

No. Parents may agree on child support, but the agreement is subject to the court's approval under Family Code section 4065(a), unless federal law prohibits it. The court does not approve an amount below the guideline formula, California's statewide calculation, unless the parents declare all of these: they are fully informed of their rights concerning child support; the order is being agreed to without coercion or duress; the agreement is in the best interests of the children involved; the needs of the children will be adequately met by the stipulated amount; and the right to support has not been assigned to the county and no public assistance application is pending. Our guide to child support mediation walks through how that conversation is often structured.

Yes. Spousal support, sometimes called alimony, is one of the issues couples commonly list for mediation alongside property, debts, child support and a parenting schedule. It is a support issue, so the disclosure rules above apply to it: the final declaration of disclosure and a current income and expense declaration are due before or at the time you enter into an agreement resolving support issues other than temporary support, unless the two of you mutually waive the final declaration as Family Code section 2105(d) describes (Family Code section 2105(a)). Mediation gives you and your spouse a setting to look at those financial records together and talk through what support, if any, each of you considers workable.

Reaching agreement in mediation is not the last step. The terms you and your spouse accept are put into a written settlement agreement that you both sign; as noted above, whether that written agreement can be admitted or disclosed depends on the conditions in Evidence Code section 1123. The financial disclosure steps under Family Code sections 2104 and 2105 still apply before or at the time of an agreement on property or support. Some terms need court approval: a child support agreement, for example, is subject to the court's approval under Family Code section 4065(a). The six-month period still runs, so even with a complete agreement the marriage does not end until the period under Family Code section 2339 has passed. The California Courts Self-Help Guide on divorce, listed in the Sources below, describes the court's general process.

You and your spouse may reach a custody and visitation agreement in private mediation, and many parents use that time to build a detailed parenting plan. Not all family law mediation is voluntary, though. When custody or visitation is contested in a court filing, the court must set the contested issues for mediation (Family Code section 3170). In San Diego County, that court mediation is child custody recommending counseling with Family Court Services at the Superior Court of California, County of San Diego, where the counselor is called a Family Court Counselor. Under Family Code section 3183(a), except as provided in section 3188, 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 states that if no agreement is reached, the counselor makes a recommendation and the court hearing goes forward. The judge decides. The Evidence Code's mediation confidentiality chapter does not apply to that court mediation (Evidence Code section 1117(b)(1)). Instead, those proceedings are held in private and are confidential under Family Code section 3177. Private divorce mediation is a separate process, and Simple Divorce Mediation has no connection to the court or Family Court Services. More detail is in our guide to child custody mediation.

California generally divides the community estate equally, which means what the spouses own and owe as a couple, unless the spouses agree otherwise in writing or by oral stipulation in open court (Family Code section 2550). That equal-division rule covers obligations too, and our guide to debt in divorce mediation explains how couples sort them out. The court values assets and debts as near as practicable to the time of trial. On 30 days' notice by the moving party, the court may for good cause value all or part of the assets and debts as of a date after separation and before trial (Family Code section 2552). Separate property is what one spouse owns alone, such as money owned before marriage. Under Family Code section 2640(b), a spouse is reimbursed for contributions to the acquisition of community property that the spouse traces 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. Those contributions are downpayments, payments for improvements, and payments that reduce the principal of a loan used to buy or improve the property. They do not include interest, maintenance, insurance or taxes. The reimbursement is paid without interest or adjustment for change in the value of money, and it cannot exceed the net value of the property at the time of division. In mediation, you and your spouse can work through each of these rules with the full disclosures in front of you.

Retirement accounts and pensions earned during the marriage are often among the largest community assets a couple has. Family Code section 2610 directs the court, except as its subdivision (b) provides, to make the orders needed so each spouse receives a full community share of any retirement plan, public or private, including survivor and death benefits. You and your spouse may address these plans in mediation as part of the overall property division. How a particular plan is divided depends on the type of plan and your circumstances.

Mediation may not be right for every couple. If there has been domestic violence, coercion or a protective order between you, safety comes first, and no one should feel pressed to sit down and negotiate with the other spouse. If you are in immediate danger, call 911. In the court's custody mediation, domestic violence cases are handled by Family Court Services under a separate written protocol approved by the Judicial Council (Family Code section 3170(b)). For other couples, whether mediation fits depends on the issues and on whether both spouses are willing to take part. It may be simpler than litigating in court, depending on the couple, but no one can promise that.

No single method guarantees an amicable divorce, because so much depends on both spouses. Mediation offers one structured way: you and your spouse talk through each issue with a neutral person present, and you, not a judge, decide the terms. An amicable result tends to depend on both spouses being willing to disclose fully, listen, and consider options they had not first planned on. Where some issues stay open, a partial agreement can still narrow what remains.

Preparation usually starts with the financial records behind the declarations of disclosure under Family Code sections 2104 and 2105: tax returns, pay records, bank and retirement statements, loan balances and records of what each spouse owned before marriage. Couples typically find it useful to list the issues they expect to discuss, including property, debts, spousal support, child support and a parenting schedule if they have children. Some couples find it useful to consider what matters most to each spouse before sessions begin, as this can help focus the discussion on priority issues. A divorce mediation checklist can help organize these items for each stage.