How Divorce Mediation Works in California: A Step-by-Step Guide

In California divorce mediation, you and your spouse work with a neutral mediator to reach your own agreement on property, support and parenting. The court case still runs alongside the mediation. Both of you still exchange sworn financial disclosures. The signed agreement then goes to a judge, who reviews it and enters it as part of the divorce judgment.

You may be reading this after a hard conversation at the kitchen table, or late at night on behalf of both of you. You may be trying to work out whether there is a way to end the marriage without turning it into a courtroom contest. Most people facing this process have never seen it from the inside. The unknowns can feel heavier than the decisions themselves: who does what, which papers are required, how long it lasts and where it can stall. This guide walks through each stage in order. It covers what happens and what the law requires. It also covers how the work moves from first conversation to final judgment, whether you live in San Diego County or anywhere else in California and mediate online.

The process below has six steps. The six-month waiting period described in Step 2 sets the earliest date a divorce can become final. How long the rest takes depends on the two of you and the issues in front of you.

Before You Start: What You and Your Spouse Need to Know

Mediation and the mediator's role. Evidence Code section 1115 defines mediation as a process in which a neutral person helps the disputants communicate so they can reach "a mutually acceptable agreement." A mediator is that neutral person. The mediator does not represent either of you, does not act as either spouse's lawyer and does not decide anything for you. Decisions stay with the two of you.

Private mediation and court custody mediation are different processes. Private divorce mediation is a process you and your spouse choose. Separately, when custody or visitation is contested in a court case, the court sets those issues for its own mediation under Family Code section 3170. In San Diego County, the court's Family Court Services handles that process, which is called child custody recommending counseling. Simple Divorce Mediation is a private practice. It is not connected to the court, Family Court Services or any government program.

Residency is a filing rule, not a mediation rule. Under Family Code section 2320, a judgment of dissolution generally cannot be entered unless one spouse has lived in California for six months, and in the filing county for three months, immediately before the petition is filed. Section 2320 has a limited exception for some same-sex marriages entered in California. You can begin mediating before you meet the residency rule. The petition is filed once one of you does.

Safety comes first. If you are in immediate danger, call 911. Where there has been domestic violence, coercion or a protective order, mediating with the other spouse may not be appropriate. In that situation the starting point is safety, not negotiation.

Lawyers are optional. Either spouse may have a lawyer of their own during mediation. Neither of you is required to have one, and neither of you is barred from having one. An attorney-mediator's role is still a neutral one: an attorney who serves as a mediator does not represent either spouse.

Disclosure still applies. Mediation does not remove the duty of financial disclosure under Family Code sections 2104 and 2105. Step 3 explains how that works.

Step 1: Decide to Mediate and Contact a Mediator

The first step is a joint decision. Private mediation depends on both spouses being willing to sit down, in person or online, and work toward an agreement. The mediator works with both of you, never for one of you.

The first contact with a mediator usually takes the form of a mediation consultation. Evidence Code section 1115(c) defines this as a communication between a person and a mediator for the purpose of initiating, considering or reconvening a mediation, or retaining the mediator. It is a chance for one or both of you to learn how the process would work and to decide whether to go forward.

Early on, couples often bring a general picture of their situation:

• what they own and what they owe
• each spouse's income
• where the children are living now and how the week works for them

Exact figures are not needed at this point. The detailed numbers come through formal disclosure.

Mediation fits some couples and not others, depending on the couple and the issues. A couple that agrees on most things may find it works well. A couple far apart on several issues may find it useful too, or may find they need another path for some issues. No one can predict at the outset how it will turn out. For an overview of the method itself, the guide to divorce mediation in California covers the basics.

Step 2: File the Petition and Serve Your Spouse

A California divorce requires a court case, even when the couple mediates. Mediation can produce an agreement. A divorce, however, ends only through a court judgment.

Filing the petition. One spouse, called the petitioner, files a petition for dissolution of marriage with the superior court. The case is filed in a county where at least one spouse meets the residency rule in Family Code section 2320. Which court that is depends on your circumstances, including where each of you lives. 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 their own county's superior court.

Serving the other spouse. The other spouse, called the respondent, is formally served with the summons and petition, or appears in the case. The respondent may then file a response.

The waiting period starts here. Under Family Code section 2339, no judgment of dissolution is final 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 clock does not start on the filing date. The court may extend the period for good cause. For many couples, the filing and the mediation sessions happen side by side during these months. The page on uncontested divorce mediation explains how that overlap often works.

Step 3: Complete Financial Disclosure

Mediation does not let spouses skip, shorten or informally replace the declarations of disclosure. These are sworn statements, signed under penalty of perjury on Judicial Council forms. They list each spouse's assets, debts, income and expenses. An agreement is only as sound as the information behind it, which is why the law requires them.

Preliminary declaration of disclosure. Under Family Code section 2104(f), each spouse serves a preliminary declaration of disclosure on the other with the petition or response, or within 60 days of filing it. The parties can extend that time by written agreement, or the court can extend it by order. The preliminary declaration must include all tax returns the spouse filed in the two years before serving it. Under section 2104(b), it is not filed with the court unless the court orders it, but proof that it was served is filed.

Final declaration of disclosure. Under Family Code section 2105(a), each spouse serves a final declaration of disclosure and a current income and expense declaration. These are due before or at the time the parties 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. The court may order otherwise for good cause.

The waiver must be mutual. Spouses may waive the final declaration only by mutual agreement. One spouse alone cannot waive it. Under Family Code section 2105(d), the waiver must be signed under penalty of perjury, either in open court or by separate stipulation. It must include the representations that section lists, among them that both spouses have completed and exchanged their preliminary declarations and a current income and expense declaration.

Values are current, not frozen at separation. Under Family Code section 2552, the court values community assets and debts as near as practicable to the time of trial. On 30 days' notice and for good cause, the court may use a date after separation and before trial.

Step 4: Work Through the Issues in Mediation Sessions

This is the heart of the process. With the disclosures in hand, you and your spouse work through the issues, typically including:

• division of community property and debts
• spousal support
• child custody and parenting arrangements
• child support

For many couples, this is the stage where the decisions start to feel real.

Property and debts. California is a community property state. Under Family Code section 2550, the court divides the community estate equally unless the spouses agree otherwise in writing or by oral stipulation in open court. Separate property generally stays with the spouse who owns it. This includes property owned before the marriage and property received by gift or inheritance.

Under Family Code section 2640, a spouse who traced separate-property money into community property is reimbursed for that contribution, unless the spouse has made a written waiver of the right to reimbursement or has signed a writing that has the effect of a waiver. The reimbursement comes without interest or adjustment for change in monetary values and may not exceed the net value of the property at the time of the division. A different rule, often called Moore/Marsden apportionment, applies to the opposite situation: community money paying down a loan on one spouse's separate-property home.

A business's value can include goodwill, and its value is decided on the evidence, often with help from experts.

Child support. Parents may agree on child support, but the agreement is subject to the court's approval. Under Family Code section 4065(a), 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 agreed amount
• the right to support has not been assigned to the county, and no public assistance application is pending

Spousal support. Spousal support terms in a mediated agreement also become part of the judgment the court reviews.

The mediator's part. Throughout this step, the mediator helps you both communicate, frame the options and test whether a proposal works for each of you. The mediator does not decide any issue.

Step 5: Reduce the Agreement to Writing

When you reach agreement on all or some issues, the terms are written into a marital settlement agreement. This document may also be called a settlement agreement or a stipulated judgment. If some issues remain open, the agreement can cover what is resolved, and the remaining issues move to a next step.

Confidentiality has limits. Under Evidence Code section 1119, what is said and written in mediation is generally confidential. It is generally not admissible as evidence or subject to discovery, except as the Evidence Code's mediation chapter otherwise provides. That confidentiality is not absolute.

When a signed agreement can be disclosed. Evidence Code section 1123 provides that a written settlement agreement signed by the spouses can be admitted or disclosed if any of these conditions applies:

• 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
• the agreement is used to show fraud, duress or illegality relevant to an issue in dispute

Most settlement agreements intended to become a court judgment say they are binding. A mediated settlement agreement is therefore not always private.

The court has the final word. The agreement goes to the court for approval and becomes part of the judgment. The court, not the mediator, makes the divorce final.

Step 6: Submit the Agreement and Obtain the Judgment

The final step returns to the court. The marital settlement agreement is submitted with the required judgment paperwork for the judge's review and signature.

The court reviews the agreement before approving it. This review includes child support terms under the section 4065 rules described in Step 4. The California courts' self-help divorce pages describe the judgment paperwork in general terms.

Even with a signed judgment, the marriage cannot end before the section 2339 waiting period has passed. That period runs six months from service of the summons and petition or the respondent's appearance, whichever came first. Once the court has entered the judgment and the waiting period has run, the marriage is legally dissolved. Exact timing depends on when service occurred and when the paperwork is completed and approved.

Typical Timeline: What the Six-Month Waiting Period Actually Means

The six-month period is a legal minimum, not an estimate of how long a divorce takes. It starts at service of the summons and petition or the respondent's appearance, whichever comes first, never at filing. The court can extend it for good cause.

The overall length of a mediated divorce depends on several things:

• how quickly both disclosures are completed
• how many issues are open
• how complex the finances are
• how long reaching agreement takes for the two spouses

Mediation may shorten the overall process compared with contested litigation, depending on the couple and the issues, but nothing guarantees it. The comparison of mediation and litigation walks through how the two paths differ.

When the Process Gets More Complicated

Contested custody in a court case

If you are in immediate danger, call 911.

When a court filing shows that custody or visitation is contested, the court must set those issues for mediation under Family Code section 3170. That mediation is not voluntary. In San Diego County, it is child custody recommending counseling with the court's Family Court Services.

Under Family Code section 3183(a), except as section 3188 provides, the court's mediator may, consistent with local court rules, submit a recommendation to the court on custody or visitation. The mediator must first give the recommendation in writing to the parties and their attorneys before the hearing. That person is called a child custody recommending counselor, and Family Court Services calls this person the Family Court Counselor. Family Court Services says that if no agreement is reached, the counselor makes a recommendation and the court hearing proceeds. The judge decides. This court process is entirely separate from private mediation.

Domestic violence, coercion or protective orders

Under Family Code section 3170(b), domestic violence cases are handled by Family Court Services under a separate written protocol approved by the Judicial Council. Where there has been domestic violence, coercion or a protective order, safety comes first, and mediating with the other spouse may not be appropriate.

Businesses, real estate and complex assets

A family business, a home bought with separate funds, or layered investments can call for outside input, such as an appraisal or an expert's valuation. These questions can still be discussed in mediation. The figures simply take more work to establish.

Partial agreement or impasse

Sometimes couples resolve some issues and not others. The agreed terms can be written down, and the remaining issues move to another next step.

Talking Through How Mediation Would Work for the Two of You

Every couple's version of these six steps looks a little different. The differences come from where you live, whether children are involved and how your finances are structured. A consultation is the place to talk through which issues are open, how disclosure and filing would fit around the mediation, and whether mediation suits your situation at all. The practice mediates California divorces for couples in San Diego and the rest of San Diego County, including Carlsbad, Encinitas and Oceanside, and online for couples anywhere in California.

To talk through how this process would apply to the two of you, call Simple Divorce Mediation at 858-330-1378 for a joint mediation consultation.