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Mediation and Collaborative Divorce

by | Jun 3, 2022 | Divorce

When we think of divorce, collaboration is not something that generally comes to mind. When partners decide to divorce, there are a lot of things to consider and be decided before a divorce can become finalized. These can include the division of the assets and debts, spousal support, child support, child custody and visitation, real property division and retirement considerations just to name a few. However, just because you and your ex-partner may have disagreements regarding these matters, does not necessarily mean you have to put your fate into the Court’s hands to resolve them. Mediation or collaboration to settle your divorce may be an option.

The judge does not know you, your family or your relationship and while they do the best they can to make a ruling that is fair and equitable within the bounds of the law with the information put before them, the Court can never know your situation as well as you do. Because of this, most people are not happy with orders made by the Court. Once the Court makes an order, however, it must be followed. As such, if you are able to take control over your divorce and the decisions surrounding the issues involved, you are likely to end up with an outcome that is more beneficial to you and your family.

Moreover, the Courts in California and San Diego especially, are experiencing extremely long wait times for hearings. A request for order or motion that is filed in April, may not be able to get heard by the judge until September or later. If your matter requires an evidentiary hearing or a trial, the Court may not have an opening to hear your case until 2023. In California, there is a six month waiting period before any divorce can be finalized, but if motions and trials are required the length of time it might take to get your divorce could be years.

Sometimes, however, mediation or a collaborative divorce is simply not possible. There may be too much conflict, the assets and liabilities involved may be too complicated and cause too much disagreement, or maybe your goal is not necessarily to have a simplified and streamlined divorce. All of these scenarios are okay. Every divorce is highly personal, and unique to that couple or family. Wherever you are at in your divorce journey, we are here to help you.

California is a “no-fault” divorce state, which means neither party has to prove someone did something wrong that caused the breakup to get a divorce. What this can also mean, however, is that some behaviors you might have found unacceptable in the relationship are not necessarily something the Court considers as relevant to your divorce. For example, the Court does not generally care if one party cheated on the other. Those acts are certainly reason for the aggrieved party to be sad, hurt, angry and upset, but it does not generally affect the outcome of a divorce. That is not to say that bad acts by a party are always ignored. If there is evidence of domestic violence, addiction, child abuse, fraud, or another serious bad act, the Court can and generally will consider these issues if relevant to the matter before the Court. Since California is a “no-fault” state, some people find it is not worth their time and effort to attempt to battle out their grievances in Court and instead try to settle their divorce together instead.

If you are in a place where you think mediation or collaborative divorce is possible, it can save you and your ex-partner some of the time, money and grief that naturally comes with a divorce. In mediation, an impartial person helps the parties go through the issues that need resolution for the divorce to be finalized and works with both parties to come to an agreement that they both can live with. A collaborative divorce is a divorce settlement that is worked on and agreed to by both parties. This is generally accomplished through meetings with the parties, their attorneys, and even potentially a financial planner or other specialist, or perhaps a mediation with a neutral third-party mediator. The goal is the same for all parties, to work together to come up with a settlement agreement that conforms to California law and is acceptable to everyone involved.

Does this mean a divorce is possible without heavy litigation and fighting before the Court? Yes, it does.  If you and your ex-partner are able to be civil to each other, and you both have the goal of completing your divorce and moving on with your lives as amicably as possible, mediation or a collaborative divorce may be right for you. In fact, if you are on decent terms with your ex-partner litigation may not be a good option for you because it can result in further anger, resentment and miscommunication. There are a lot of moving pieces to a divorce, and sometimes all it takes to take the parties from decent terms to utter loathing is a highly contentious and litigious divorce. Unfortunately, this can result simply from one party retaining the services of an attorney that loves nothing more than a good fight, no matter the cost to their client. We see this far too often in family law in California.  At Butler Law, we don’t practice law this way because our Client’s goals are always at the top of our mind and are the basis for our strategy and actions.

A mediation or collaborative divorce also allows the parties to take into account their total well-being including their financial stability, physical limitations, mental health and emotional state. Significantly, mediation and collaborative divorces are often great options for parents. This is because it allows ex-partners that are parents consider together what is best for their children and really work together in their co-parenting or parallel parenting. This can allow for less disruption and confusion in the child’s life, which is in their best interest.  We all know children of divorce are often the ones affected the most, and they are the ones with no control or say over the situation. Divorce is difficult on everyone involved, but there are ways to make it a little more manageable.

To participate in mediation and collaborative divorce, both parties should agree to work together respectfully, honestly and in good faith to try to reach a settlement agreement without going to Court. The focus is on problem solving, family planning and making plans for your respective futures, rather than casting blame and or making accusations. You still have the same rights and obligations no matter how you handle your divorce. It is up to you how you go about it, and it really depends on what your overall goals are. If you want to move on with your life as quickly, efficiently, and amicably as possible, mediation or collaborative divorce might be right for you.