04 Feb Common Questions About Divorce Mediation
1) Are agreements drafted in divorce mediation binding and enforceable? Can a spouse make a change to the agreement after it has been signed?
Mediation is a voluntary process, and discussions in mediation are not binding. Written agreements (also called stipulated judgments) prepared in mediation are binding and enforceable once they have been signed by both parties. Most of the terms of the signed agreement cannot be changed unless both parties agree to the change. For example, the division of assets is generally binding, and would be difficult for one party to undo after signing. But some of the provisions of the agreement are modifiable. For example, the court always retains the right to modify child support based on a change of circumstances. Before signing an agreement, make sure you fully understand whether, and under what circumstances, the agreement is modifiable.
2) Is there a formula to calculate spousal support?
While there is a formula for calculating child support, there is no formula to calculate spousal support. In California, the court uses a list of fourteen factors to determine spousal support. The factors include the length of the marriage, earning capacity of the parties, the marital standard living and “any other factors the court determines are just equitable.” Because there is no formula, it is difficult to predict exactly what a court would order for the amount of spousal support, and how long it will last. In divorce mediation, you will look at income, expenses, and other relevant factors to determine a support arrangement that both parties can accept.
3) Once I start mediation do I still have the option of going to litigation?
Yes. Mediation is a voluntary process and you can choose to end it any time.
4) Is a mediator necessarily an attorney?
In California, a mediator is not required to be admitted to the Bar. He or she can have a background in law, but can also have a background in other fields, such as psychology or business. If you are considering using a mediator who is not an attorney, you might ask whether the mediator will be able to provide information about family law and draft a Judgment incorporating the terms of the settlement to submit to Court.
5) Do I have to file for divorce before starting mediation?
You do not have to file for divorce before starting mediation. In mediation, you and your spouse can discuss and agree on the timing of filing for divorce and decide who will be petitioner and who will be respondent. The mediator can prepare the paperwork to ensure that the forms are filled out correctly, and arrange for filing in court.
6) Is there a best time of year to file for divorce?
You can file for divorce at any time during the year. There is a six-month minimum time frame before a judge will grant a divorce. The main consideration to keep in mind is your tax status. The general rule is that the IRS determines your tax status for a particular year based on your marital status on the last day of that year. Thus, if on December 31 your Judgment has not yet been entered, the IRS will consider you as “married” for that year. For more information click here.
7) How long does it take to get a divorce?
In California, the court will not grant a divorce unless at least six months have passed since commencing the action. Some people think that a divorce is granted automatically after six months have passed. That is incorrect. The parties must first agree on settlement terms and sign a stipulated judgment incorporating those terms. The signed judgment is then submitted to court; depending on the caseload of the court, it can take approximately 3-5 months to process and finalize the divorce. The length of time it takes to agree to settlement terms that are incorporated in the Judgment depends on the parties. Factors that affect the timeframe include whether or not there are minor children, the number and complexity of issues to be resolved, and the level of communication between the parties. Thus, the minimum time it takes to get a divorce is six months but it could take longer if the parties require more time to come to an agreement.
8) If we mediate do we need to go to court?
In almost all cases, you will not have to make a physical appearance in court. However, if a long period of time (several years) has passed since you started your case, and you have not yet reached a settlement, the court may require you to come in and report on your progress in reaching a settlement.
9) Is it possible that my situation is too complicated for mediation?
Situations that have complicated financial issues are appropriate for mediation. If needed, a neutral financial professional can be brought in to help. For example, if there is a family business, a financial professional can be brought in to determine the value of the business and help develop options for a financial settlement. Similarly, if there are complicated issues involving parenting, a mental health professional with experience in co-parenting issues can assist in the mediation.