Can You Mediate a Divorce After an Affair?

Under Family Code section 2310, the grounds for ending a marriage in California are irreconcilable differences that have caused the irremediable breakdown of the marriage, or permanent legal incapacity to make decisions. An affair is not one of them. Family Code section 2335 provides that, except as otherwise provided by statute, evidence of specific acts of misconduct is improper and inadmissible in a dissolution proceeding. You and your spouse may still use mediation to work on the issues of the divorce.

One spouse may be reading this alone, wondering whether the other will agree to sit down at all. Both of you may be asking whether a calm, shared process can hold a story this painful. This article walks through how the Family Code treats the grounds for divorce and evidence of misconduct, and what mediation can and cannot do, whether you are in San Diego County or mediating online from elsewhere in California.

The Grounds for Divorce and Mediation After an Affair

Family Code section 2310 lists the grounds for ending a marriage, and there are exactly two: irreconcilable differences that have caused the irremediable breakdown of the marriage, and permanent legal incapacity to make decisions. Under Family Code section 2311, irreconcilable differences are those grounds determined by the court to be substantial reasons for not continuing the marriage and which make it appear that the marriage should be dissolved. Section 2310 says the grounds "shall be pleaded generally."

A related rule addresses evidence of misconduct. Family Code section 2335 says that, except as otherwise provided by statute, "evidence of specific acts of misconduct is improper and inadmissible" in a dissolution or legal separation proceeding, including depositions and discovery.

That is the framework mediation works inside. A mediator, as Evidence Code section 1115 defines the role, is a neutral person who helps both spouses communicate so they can reach an agreement they both accept. The mediator does not represent either of you, does not advocate for either of you and does not decide anything for you. The work is about the issues the law asks you to resolve, such as property, debts, support and, where you have children, parenting. It is not about assigning blame.

The emotional weight of an affair is real, and it can shape how two people talk to each other. Mediation does not ask anyone to pretend otherwise.

Community Property and the Duties Spouses Owe Each Other

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, or the Family Code provides otherwise. Under Family Code section 760, except as otherwise provided by statute, property acquired by a married person during the marriage while domiciled in California is community property.

Family Code section 770 says separate property includes all property owned before marriage, all property acquired during marriage by gift, bequest, devise or descent, and the rents, issues and profits of that property.

Family Code section 721 says that spouses, in transactions between themselves, are subject to the general rules governing fiduciary relationships. This confidential relationship imposes "a duty of the highest good faith and fair dealing on each spouse, and neither shall take any unfair advantage of the other," and includes duties such as providing each spouse access at all times to any books kept regarding a transaction.

Family Code section 1101 gives a spouse a claim against the other for any breach of that duty that impairs the claimant's present one-half interest in the community estate, including a single transaction or a pattern or series of transactions. The court may also order an accounting of the spouses' property and obligations. These questions can be raised in mediation, where you and your spouse can look at the records together. For more on how the division itself works, see the guide to property division mediation.

Spousal Support and Domestic Violence Convictions

Family Code section 4320 lists the circumstances the court considers when it orders spousal support, including the extent to which each spouse's earning capacity is sufficient to maintain the standard of living established during the marriage, the supported spouse's marketable skills and job market, any impairment of earning capacity from time out of work for domestic duties, and the supported spouse's contributions to the other's education, training, career or license. The list continues beyond these examples. Section 2335 generally keeps evidence of specific acts of misconduct out of the proceeding, except as a statute otherwise provides.

Separately, Family Code section 4325 creates a rebuttable presumption, meaning a starting rule the other side can try to overcome, that applies where one spouse has a criminal conviction for a domestic violence misdemeanor, or for a misdemeanor resulting in a term of probation as that section describes, committed against the other spouse and entered within five years before the divorce was filed or during the case. The presumption is that an award of spousal support to the convicted spouse from the injured spouse is prohibited, and, if economic circumstances warrant, that attorney's fees and costs are paid from community assets rather than from the injured spouse's separate property. The rule turns on a conviction, not on an affair.

Spouses may discuss spousal support in mediation, including the amount and how long it lasts. Feelings about the affair may affect what each of you sees as fair. The guide to spousal support mediation covers these factors in more depth.

Financial Disclosure: What Mediation Cannot Skip

Mediation does not remove the duty of financial disclosure. Each spouse completes the declarations of disclosure the Family Code requires, and mediating does not let anyone skip, shorten or informally replace them.

The preliminary declaration of disclosure has a fixed deadline. Under Family Code section 2104(f), each spouse serves it 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 final declaration comes later. 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, signed under penalty of perjury, 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. Perjury on the final declaration may be grounds for setting aside the judgment or parts of it.

The spouses may mutually waive the final declaration. A waiver has to be mutual, never one spouse alone, and it must be executed under penalty of perjury in open court or by separate stipulation and include the representations Family Code section 2105(d) lists.

The page on financial disclosure in divorce mediation covers disclosures in more detail.

Mediation Confidentiality in California

Evidence Code section 1119 makes private mediation confidential, except as the Evidence Code's mediation chapter otherwise provides. Anything said, and any writing prepared, for the purpose of or in the course of a mediation is generally not admissible or subject to discovery in a civil or other noncriminal proceeding, and the section states that "all communications, negotiations, or settlement discussions by and between participants in the course of a mediation or a mediation consultation shall remain confidential."

That protection is not absolute. Evidence Code section 1123 says a written settlement agreement prepared in mediation and signed by the settling parties is not made inadmissible or protected from disclosure if any of these is true: the agreement 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 provides, to its disclosure; or it is used to show fraud, duress or illegality relevant to an issue in dispute. More detail is in the explainer on divorce mediation confidentiality.

Either of you may have a lawyer of your own during mediation. Except in the case of a class or representative action, an attorney who represents a spouse in mediation must give the client the printed confidentiality disclosure Evidence Code section 1129 requires, as soon as reasonably possible before the client agrees to participate, or as soon as reasonably possible after being retained if retained later.

The court's child custody mediation follows different rules. Evidence Code section 1117(b) says the mediation confidentiality chapter does not apply to proceedings under Family Code sections 3160 and following. Those court proceedings are held in private and are confidential under Family Code section 3177. Private divorce mediation, the kind Simple Divorce Mediation offers, is separate from the court and from Family Court Services.

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 should feel pressed to sit down with the other spouse. The page on when mediation is not appropriate looks at these situations more closely.

The court has its own track for parenting disputes. When custody or visitation is contested, Family Code section 3170 requires the court to set the contested issues for mediation, and section 3170(b) says domestic violence cases are handled by Family Court Services under a separate written protocol approved by the Judicial Council. In San Diego County, cases are heard by the Superior Court of California, County of San Diego, and that court mediation is child custody recommending counseling with Family Court Services under Family Code sections 3170 and 3183. Under section 3183(a), except as section 3188 provides, the mediator may, consistent with local court rules, make a recommendation to the court if it is first provided in writing to the parties and their attorneys before the hearing. Family Court Services calls this person the Family Court Counselor, and it says that if no agreement is reached, the counselor makes a recommendation and the court hearing proceeds. The judge decides.

To Talk With Simple Divorce Mediation About Mediation After an Affair

An affair can make every money question feel personal, from a credit card statement to a support figure. A consultation is a place to raise questions about disclosure and confidentiality, whether you are in San Diego County or elsewhere in California and considering mediating online. There is no need to decide anything before you call. To talk with the practice about mediation after an affair, 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 2026-10-08.