San Diego Family Law Attorney is a premium law firm that provides legal advice regarding mediation to people who are facing a divorce in San Diego, California. We have experience in handling child support, child visitation rights, spouse support and all matters related to divorce. We value our clients’ needs and emotional needs caused by the divorce and that is why we stick with you from the moment you contact us to the very last minute when the parties involved and the mediator reach a consensus.
The General View of California Laws on Divorce
The state of California defines divorce as the dissolution of marriage. California family law, family code section 2300, requires that you have resided in California for at least a period of 6 months or 3 months in the particular county where you are filing for divorce. California also recognizes same-sex marriages and can grant a same-sex divorce.
Some divorces might drag in the courts for a long period, especially when children are involved and a lot of property is at stake. In other cases, the divorce may be simple as the parties involved agree on a settlement. Since California is a no-fault state, anyone in a marriage can file for a divorce without necessarily having to cite the other spouse’s mistakes; the presence of irreconcilable differences is enough to get you a divorce.
The Mediation Process
When a couple has decided to get a divorce, they can follow the litigation path or simply bring in a neutral party that can help in settling their disputes out of courts and at the end, all the aggrieved parties involved will be in a win-win situation. A mediator is a neutral party that is contacted by the couple to provide an amicable channel whereby all that is at stake in that marriage is handled to the best interest of the couple. Another way of bringing in a mediator is through the couple’s respective lawyers. The mediation sessions, which always take place behind closed doors, are private and confidential and cannot be disclosed to anyone.
The mediation process is mostly involuntary or court referred. Either way, the primary goal is to avoid expenses that come with court cases and lawyer charges, avoid any hostility and controversy that might arise with a dissolution of marriage, and create a mutual agreement between the two parties.
Once the couple has agreed on consulting a mediator, they embark on the process of acquiring one. The court can provide one or the couple can outsource for one from their community references. The couple needs to get a qualified mediator who has vast experience in family law and has handled such cases before and is highly confidential. The mediator should not be biased or take sides. He or she should be neutral with the main objective of helping the couples come up with ways that they can amicably settle on all the issues. In addition, he or she should not make decisions or suggest what needs to be done, but instead, they should help the couple to meet, explore the available options, and negotiate a mutual agreement.
The couples should factor in charges for the mediator as they vary from case to case and the amount of time taken with the mediator.
Mediation Preparation
Most of the times, the mediation starts with a general caucus, meaning the mediator and the couple meet in the same room. The mediator sets the ground rules in an agreement to mediate. If the mediation was initiated by the courts, the court order will contain the rules of mediation and this order contains the most important rules and its confidentiality. All the sessions and procedures that take place during a mediation process are confidential and may not be disclosed to another party.
Opening Statements
The mediator will explain the rules of engagement as found in the agreement to mediate that was earlier explained to them during the general caucus meeting. The mediator will ask the couple to sign and later give their opening statement. This will be in the form of a general conversation. If the couples happen to be overcome with emotions and/or are hostile towards their partner, it is up to the mediator to separate them and as a result, hold a private mediation commonly known as a private caucus.
During a private caucus, the mediator holds the mediation with one party at a time in a different room. He or she shuffles between the two parties or rooms and as a rule, ensures confidentiality unless the other party wants to disclose.
Many couples dissolving their marriage prefer to resolve their divorce through a mediator. This is because it encourages communication, lessens the emotional strain, especially on the children, and it is cost effective. Mediation also takes a shorter period compared to a divorce process in court.
Mediation for Child Support in California
Family code 4050-4076 states that both parents are responsible for taking care of children born in that marriage regardless of a divorce, legal separation, or annulment. When a couple decides to dissolve their marriage, the child or children need to be taken care of. The California laws have set aside child support, which is a particular amount that the court has ordered that a parent or both parents contribute monthly towards the expenses of their child or children. This can be a trying moment for all the parties involved, especially young children.
Sometimes the couple may be hostile towards one another and the couple may decide to bring in a mediator. Here, the children will not be treated to a spectacle of their parents’ disagreements over who should pay what or have visitation rights. The mediator ensures that there is calm and the parties involved have a common denominator, which is the child or children and want the best for them without causing any more trauma.
If the couple agrees amicably on a general caucus, then the mediator's work is simplified as he or she will just work with the court order obtained from the court. This order basically considers the income earned by both parents and the time spent with the child or children.
Most divorcing parents want to support their children and provide the best education, shelter, clothing, and good health. Child support does not take a lot of the mediation time as the couple has the child or children’s well-being in mind and they want to make the process less painful and strenuous to the children. As a result, the couple usually settles on an agreement in a short time.
Child Support Requirements
Child support continues until the child attains the age of 18 years and has graduated from high school or the child turns 19 years old or has joined the military, married, or dies. In some cases where the child was disabled, the parents are mandated to continue supporting the child in case he or she is unable to support themselves due to the physical or mental inability.
Both parents are supposed to disclose their income to their mediator or the court-assigned mediator who goes ahead and calculates what each parent needs to contribute. This is done through a signed document committing yourself that at the end of every month, a certain amount will be deducted, failure to which you may be prosecuted.
The time spent with the child or children is equally considered. The more time you spend with your child or children, the less the child support.
Child Visitation Rights
California puts the child first in cases regarding dissolution of marriage and, therefore, encourages parents to spend as much time as they can with their children. A divorce breaks up a family and, in most cases, it’s the father who leaves the house. As such, the father has visitation rights and this is also included in the mediation process. There are three types of visitation namely;
- No visitation
- Supervised visitation
- Virtual visitation
The type of visitation will be accorded to one of the parents according to the terms agreed upon during the mediation process. A parent who spends less time with his or her children has visitation rights, they are encouraged to visit in order to help the children adapt to the changes and help emotionally by being there for them. If one of the parents was away for a long period and he or she does not have a relationship with the child, an adult who is known to the child may be present in order to make the child feel comfortable. In other cases, the party may be asked not to visit the child maybe because the parent may cause physical or emotional harm to the child. This could be as a result of violence or substance addiction.
Thanks to evolved technology, visitation can also be virtual through a computer application such as Skype or Facetime. The physical presence of the parent may not be felt by the child but at least the child gets to see his or her parent and that alleviates any negative feelings that may arise after the divorce.
Spousal Support and Alimony
Family code sections 4330-4339 recognize spousal support or alimony. Alimony or spousal support is a court order granted by the court after a divorce settlement, the support is to be paid to one of the parties aggrieved to alleviate financial strains caused as a result of having been granted child custody or because of unemployment. Once the couple has agreed on a mediator, this process is short and precise and they reach an agreement fast. In case they do not agree, they can request for a private caucus.
Requirements for spousal support or alimony
Before any alimony or support is paid, the mediator considers several attributes
- The couples’ income
- Financial ability, age and physical condition of the couple
- Period of marriage
- The standard of living. If the spouse was used to a lavish lifestyle, then the support is more and if the living standard was normal or low, the support is equally lower.
Once the mediator is satisfied with the requirements, the couple will again have mediation sessions in order to establish, calculate and agree on the support required depending on the above factors. Again, the mediation process is applied here and the three parties engage each other in communication, consultation and finally a settlement. The mediator before settling on an agreement, has to collect all the information needed from the couple. For instance, the mediator might see the need to physically visit their homes in order to establish the standards of living as either high or low, look at their marriage certificates in order to determine the period of marriage, the couples identification cards to get the right age and bank statements. This is why couples are encouraged to get a mediator who is qualified in family law and has vast experience from the numerous cases he or she has mediated.
California family code section 4320 contains several types of alimony that a court or a mediator may order or suggest. They include;
- Lump sum alimony
- Reimbursement alimony
- Permanent alimony
- Rehabilitative alimony
- Temporary alimony
The Importance of a Prenuptial Agreement in the Mediation Process
This is an agreement agreed upon by couples before they get married and it is provided under family code sections 1610-1617. The pre-nuptial agreement comes into effect as soon as the couple gets married. Many couples decide on a prenuptial agreement in case of a future dissolution of marriage.
A prenuptial agreement is straightforward in case of a divorce, the agreement is there to guide the couple. In California, a minor can sign a prenuptial agreement if they feel that they are capable of marriage.
Prenuptial requirements
Each couple should be well represented by an attorney when signing a prenuptial agreement. The couple should put into writing and sign the agreement in order to validate it. Their respective representation should be in possession of a complete financial report from both the spouses before validating it. The couple will be given ample time of about 7 days in order to go over the agreement before signing it. This period provides an opportunity to scrutinize the agreement and bring in a second opinion before actually signing it.
During a divorce, the couple adheres to the terms agreed in the prenuptial agreement during the mediation process. Mostly, much emphasis is put on property rights. The mediation process will address first and foremost, the rights of both parties. This will include property owned together or separately, how to control and/or manage their property or how to dispose of the property once they finalize on the divorce.
In cases where children were involved, the agreement may be invalidated if the couple felt that children were not well represented or if the children’s rights are violated. To avoid such a scenario, the mediator would have to be thorough in ensuring that priority has been given to child support and visitation rights and requirements beforehand.
Property Division in California
California family code section 2500 requires that in cases of a dissolution of marriage, the property owned by the couple should be divided equally. This is commonly regarded as community property, meaning that the property acquired during the period of marriage is equally divided upon divorce, the death of a spouse, or annulment.
Divorce brings with it emotional instability that may lead to hostility and as a result, the couple cannot reach an agreement. It make the mediation process more challenging if there is a lot of property at stake. For this reason, the neutral party comes in to assist the couple to get the most out of property division, especially if one of the parties had acquired property before marriage. The mediator will define what community property is and help resolve the conflict. The mediator will explain that the property acquired before marriage is personal property and hence during the property division, that particular property will not be divided.
During the opening statements in a mediation process, the couple discloses all their financial documents, properties owned and debts owed, which makes the property to be shared equitably rather than equally.
Contact an Expert in California Divorce Mediation Near Me
While many marriages end up in divorce, the truth is that most couples don’t envision ending the marriage with a divorce. Whether you are newly married, married for over 10 years, it’s crucial to know that mediation would help a lot in any of these stages, especially when you cannot agree on property division, child support, and visitation among other issues. You need an experienced mediator to ensure that the mediation process is smooth and efficient. If you are in San Diego, contact San Diego Family Law Attorney at 619-610-7425 if you have any questions regarding mediation. We understand the emotional challenges that most people face during divorce cases, and our role is to ensure that such interests are well addressed.
