Divorce Mediation in Encinitas, California

Divorce mediation in Encinitas is a private process in which you and your spouse work with a neutral mediator to reach your own agreement on property, support and parenting. The mediator helps you talk and does not decide anything. California's financial disclosure rules still apply. Your case is handled by the Superior Court of California, County of San Diego.

If you are reading this, you and your spouse may have reached the point where a divorce is no longer a question. The questions that are left are practical ones. You may be wondering who keeps the house in Leucadia, how the children will move between two homes, what happens to a retirement account or a small business, and whether the two of you can settle these things together without a judge doing it for you. Most people facing a divorce in Encinitas begin in roughly the same place. They want to know whether mediation is a real option for their situation, what the law will still require of them, and how much of the outcome stays in their own hands. This page explains how divorce mediation works in California, how it fits into a San Diego County case, and where its limits are. If you are in immediate danger, call 911.

What Divorce Mediation Is — and What It Is Not

California law defines a mediator as a neutral person who helps the people in a dispute communicate so they can reach an agreement they both accept (Evidence Code section 1115). The mediator does not represent you or your spouse. The mediator is not either spouse's lawyer, does not advocate for either of you, and does not decide any issue. Any agreement you reach is one that both of you choose to make.

For property and support, private divorce mediation is something the two of you choose to do. Custody is different. When custody or visitation is contested in a court case, the law requires the court to send those contested issues to mediation (Family Code section 3170). Not all family law mediation is voluntary, and the court's custody process is described later on this page. Simple Divorce Mediation is a private practice. It has no connection to the court, to Family Court Services, or to any government program.

Either spouse may have a lawyer of their own. Neither spouse is required to have one, and neither is barred from having one. Some couples in Cardiff-by-the-Sea or Olivenhain mediate with lawyers advising them in the background. Others do not use lawyers. Both arrangements fit within the process.

Mediation may not be right for every couple. If there has been domestic violence, coercion or a protective order between you, safety comes first. Mediation assumes that both spouses can speak freely, and that is not always possible.

How Divorce Cases Are Filed in San Diego County

Family law cases for people who live in Encinitas are heard by the Superior Court of California, County of San Diego. The same court hears cases for couples in nearby North County communities such as Carlsbad, Solana Beach, Del Mar, Rancho Santa Fe, San Marcos and Vista. The court where a case is filed and the rules that apply depend on your circumstances, including where each of you lives. Not every couple's case follows the same path.

Mediation can happen before a case is filed or while it is open. Either way, a few court rules shape the timeline. A judgment of dissolution cannot 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 happens first (Family Code section 2339). The clock does not start when the petition is filed. The court may extend the six-month period for good cause.

Couples whose situation is simple may be able to use a shorter process called summary dissolution. One of its conditions is that there are no children of the relationship. Its financial limits are set by statute and adjusted periodically under Family Code section 2400(b), so the current figures, not those written in section 2400(a), are the ones that apply.

Online mediation is also available to couples anywhere in California. This includes spouses who live in different counties, or one spouse in Encinitas and the other elsewhere in the state.

Financial Disclosure: What California Law Requires in Every Divorce

Mediation does not remove the duty of financial disclosure. You cannot use it to skip, shorten or informally replace the declarations of disclosure. These are sworn statements, made under penalty of perjury, that list your assets, debts and income.

The first is the preliminary declaration of disclosure. Each spouse serves it with the petition or response, or within 60 days of filing the petition or response, unless the two of you extend that time by written agreement or the court extends it by order; if the petition was served by publication or posting under a court order and the respondent then files a response, the petitioner has 30 days from that response (Family Code section 2104(f)). There is one exception. 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 second is the final declaration of disclosure, which is served together with a current income and expense declaration. Except by court order for good cause, these are due before or at the time you and your spouse enter into an agreement resolving property or support issues other than temporary support. If the case goes to trial, they are due no later than 45 days before the first assigned trial date (Family Code section 2105(a)). Couples can waive the final declaration, but only by mutual agreement. The waiver must be signed under penalty of perjury, either in open court or by separate stipulation, and it must include the representations Family Code section 2105(d) lists.

Gathering these records can feel like the heaviest part of the process, especially when one spouse has handled the household finances for years. A divorce mediation checklist can help both of you see what to collect.

Confidentiality in Private Divorce Mediation

Private mediation is confidential under Evidence Code section 1119, except as the Evidence Code's mediation chapter otherwise provides. In general, things said and written for the purpose of a mediation cannot be admitted as evidence or obtained through discovery in a later civil proceeding. That protection is real, but it is not absolute.

A written settlement agreement signed by both spouses can be admitted or disclosed in the situations Evidence Code section 1123 lists:

• the agreement says it is admissible or subject to disclosure;
• the agreement says it is enforceable or binding;
• all parties expressly agree to its disclosure; or
• the agreement is used to show fraud, duress or illegality relevant to an issue in dispute.

The mediation chapter does not apply to the court's child custody mediation (Evidence Code section 1117(b)). Those court proceedings are held in private and are confidential under a different law, Family Code section 3177.

If a lawyer represents a spouse in mediation, the lawyer must give the client a printed disclosure explaining these confidentiality limits. The lawyer must do this as soon as reasonably possible before the client agrees to take part, or soon after being hired if the lawyer is retained later (Evidence Code section 1129).

The law also defines a mediation consultation. It is a communication for the purpose of starting, considering or reconvening a mediation, or for hiring the mediator (Evidence Code section 1115(c)).

Property, Support, and Child Arrangements: What Mediation Can Address

Property. California generally divides the community estate equally. The community estate is what the spouses acquired during the marriage. Under Family Code section 2550, the court divides it equally, except upon the spouses' written agreement, their oral stipulation in open court, or as otherwise provided in that division of the Family Code. Mediation gives you a structured way to decide how that division happens, such as who keeps a home in Solana Beach and how a retirement account is shared.

If a case goes to trial, the court values assets and debts as near as practicable to the time of trial. For good cause, and on 30 days' notice from the party asking for it, the court may use a date after separation and before trial (Family Code section 2552).

Separate-property reimbursement. Separate property is property that belongs to one spouse alone. If one spouse used separate money toward a community asset, Family Code section 2640(b) generally entitles that spouse to reimbursement. This applies to contributions such as a downpayment, payments for improvements, or payments that reduce the principal of a loan used to buy or improve the property. It does not cover interest, maintenance, insurance or taxes. The spouse must trace the contribution to a separate-property source. Reimbursement is not owed if that spouse signed a written waiver, or a writing that has the effect of a waiver. The reimbursement is paid without interest or adjustment for inflation, and it cannot exceed the property's net value at the time of division.

Separate money mixed into a bank or retirement account is a different situation. That raises a question of tracing commingled funds, meaning working out which money came from where. A business's value can include goodwill. That value is decided on the evidence, often with the help of experts. More detail appears in our pages on property division mediation and business owner divorce mediation.

Support. Parents may agree on child support, but the agreement is subject to the court's approval. The court will not approve an amount below the guideline formula unless the parents declare all five of the following under Family Code section 4065(a):

• they are fully informed of their rights;
• they are agreeing without coercion or duress;
• the agreement is in the children's best interests;
• the children's needs will be adequately met; and
• the right to support has not been assigned to the county and no public assistance application is pending.

Spousal support is also something couples commonly work through. See spousal support mediation.

Parenting. Private mediation can help parents in Leucadia, Cardiff-by-the-Sea and elsewhere work toward a parenting plan together. If custody is contested in a court case, section 3170 sends the matter to the court's own mediation. In San Diego County, that is child custody recommending counseling with the court's Family Court Services, which every superior court must provide under Family Code section 3160. Under Family Code section 3183(a), except as section 3188 provides, the court's mediator may, consistent with local court rules, make a recommendation to the court, as long as 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 court hearing goes ahead. The judge decides. Domestic violence cases follow a separate protocol approved by the Judicial Council.

Serving Encinitas and North County San Diego

Simple Divorce Mediation mediates California divorces for couples in Encinitas and throughout San Diego County. In North County, that includes Leucadia, Cardiff-by-the-Sea, Olivenhain, Carlsbad, Solana Beach, Del Mar, Rancho Santa Fe, San Marcos, Vista and Oceanside. Online mediation is available to couples anywhere in California.

Whether mediation fits depends on the two of you and the issues you face. For some couples it may be simpler than going to court, but no process can promise that. Where there has been domestic violence, coercion or a protective order, safety comes first.

If You'd Like to Talk Through Mediation for Your Encinitas Divorce

Each Encinitas divorce raises its own mix of questions. One couple may need to sort out a home bought partly with separate money. Another may need a parenting schedule that works across two households, or a plan for meeting the disclosure deadlines. A consultation is a chance to talk through which of these issues apply to you and your spouse, and how mediation would approach them under California law. To explore whether mediation fits your situation, call Simple Divorce Mediation at 858-330-1378 for a joint mediation consultation.