The uncontested mediated divorce process in California

  • 01 15, 2014
  • Irwin & Irwin
  • Divorce

Overview
Divorce is a difficult process, no matter how you slice it. In California, a divorce is actually called a “Dissolution of Marriage.” Divorce almost always takes a heavy toll on everyone involved, both emotionally and financially. Some attorneys in California offer an alternative to an expensive, litigated divorce, called an “Uncontested Mediated Divorce.” An attorney offering such services should have specialized background and training in mediation.

If two people (“parties”) can work together amicably through this challenging time, an Uncontested Mediated Divorce is a way to make the process a little more comfortable. It will almost assuredly save the parties money, as compared to a litigated divorce where you pay the attorneys substantial sums to spend time in court. That money is usually better spent on things like your children’s college fund, or your retirement, instead of on attorneys.

A secondary benefit is a reduction in the emotional toll that a divorce can take. It tends not to be as severe when the parties mediate their differences and decide how their divorce process will be handled. It is very empowering for parties to decide which compromises they choose to make, instead of having decisions imposed on you by a court (and there will always be compromises in a divorce).

A typical contested divorce proceeding in California that ends up in court can cost tens of thousands of dollars. Furthermore, a complete stranger (the Judge or Commissioner) decides who gets what property & debts, who gets custody of the children, and even the schedule your children will have with each parent. This can be upsetting and foster a sense of feeling of being “out of control” of your own life.

When an attorney offers an Uncontested Mediated Divorce, the attorney does not represent either party. The attorney is actually a “neutral,” who serves to advise and guide both parties through the process. The attorney’s office will normally handle the service and filing of all necessary paperwork. If the mediation process breaks down and the parties cannot agree on certain issues, resulting in a litigated divorce, then the attorney must withdraw and cannot represent either party – both parties must then either retain their own attorneys or represent themselves.

The divorce process in California consists of basically three steps. There is a mandatory “cooling” period of six-months before the divorce can be final. Once this period has passed your “status” can change from “married” to the status of a “single person.” The six months begins from the time of service of the Petition on the “Respondent.”

While the following steps are essentially the same in any divorce proceeding, an attorney offering an Uncontested Mediated Divorce will generally use a streamlined process to get through the process with minimal(or no!) time spent in court.

First Step: The Pleadings Stage
This is where the initial divorce process starts. In which court will the divorce be filed, who will be the “Petitioner,” and who will be the “Respondent?” This is probably the simplest part of the process. But while the forms appear pretty simple, they address some very important questions about support and child custody (among others). It is critical that these issues be addressed correctly, because the divorce is technically a lawsuit, and as the process proceeds the parties can only ask for what they requested in these initial pleadings.

One party (Petitioner) must start the process by filing the Petition and Summons and serving these documents on the other party (Respondent). The Respondent must then file and serve a Response (within thirty days).

In order for the court of a county to have jurisdiction over divorce proceedings, one of the parties must have been a resident of California for six months and of the county in which the action is filed for three months immediately prior to filing the Petition for Dissolution.

Second Step: The Discovery Stage
There are mandatory disclosures required in the State of California Family Courts. The parties must disclose all financial information. This includes both “separate” property and “community” property.

California is a community property state. Except as otherwise provided by statute, all property, real or personal or wherever situated, acquired by married persons during the marriage while domiciled in California, is community property. This means that everything that was purchased, or any debt that was incurred, during the marriage belongs to the community. Separate property is usually that property acquired by a person before marriage, or during marriage by gift, bequest, devise, or descent. Separate property also includes earnings and accumulations of either spouse while living separate and apart from the other spouse (after the date of separation). Debts acquired by either party during the marriage, but before separation, are presumed to be community debts.

Married persons are considered to have a “confidential relationship,” which imposes a duty of the highest good faith and fair dealing on each other. Neither shall take any unfair advantage of the other. Each spouse is required to provide the other access to records and information regarding transactions concerning community property. Everything must be disclosed. This includes providing supporting information, like bank and credit card statements, tax returns, loan documents, and title documents.

Third Step: The Marital Settlement Agreement Stage
This is the final step. This is a contractual agreement between the parties which details how property and debt will be divided, whether any child or spousal support will be paid, and the terms of child custody and visitation.

The Marital Settlement Agreement (“MSA”) is submitted to the Court as a Judgment. Once the Court approves the Judgment it is then filed. If the six-month waiting period has already passed, the parties’ “status” can change and a person is then divorced at the time of entry of Judgment (status changes from married to single). If the six-month time period has not yet been met, a final divorce date will be noted on the Judgment at approximately the six-month mark.

In conclusion, this is a very basic overview of the Uncontested Mediated Divorce process. For people who can set aside their animosity and work together amicably to move forward in their lives, this is can be a very constructive (and cost-saving) alternative to a contested divorce.

By: Kelly R.M. Irwin, Esq. & Mark A. Irwin, Esq.