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MEDIATION Why should I consider mediation for my divorce? What does full service mediation mean? What does the mediator do? What is the mediation process? What can I expect during mediation? How do I prepare? How do the court papers get filed? Will I have to appear in court? How long does mediation take? How much does mediation cost? Will our agreement be enforceable? Should/Can I consult a lawyer during the mediation process? What if my case is too complicated for mediation? What is the difference between private mediation and court mediation? What if we don't agree on all the issues? Is mediation still an option if we are not on good terms?
Are there specific reasons needed to file for dissolution or legal separation of marriage in California? What are the residency requirements to file for divorce/legal separation in California? When is the earliest date on which I can be divorced?What do I need to understand regarding the division of our community property?Why would one spouse pay spousal support/alimony to the other and at what amount? If the parties can't decide, how is child custody determined? How do we determine an amount of support to be paid for our children?Why should I consider mediation for my divorce?
Mediation enables you to make the final decision regardingthe resolution of all issues pertaining to your family law action. No matter who we are (age, wealth, education), having someone tell us what to do is difficult to follow. That is the feeling experienced by many parties when faced with a judge's decision relating to their children, their finances, and their property. That decision was made by a person who has very limited insight into your lives.
Mediation is the forum to retain complete participation inthe problem solving process. With thatcontrol, an agreement made in mediation is more likely to be followed for years to come. Parties to any family law matter must always consider mediation as an alternative method to resolving their issues.
Mediation can save you money. When represented, litigating your divorce can become very expensive very quickly. It is not uncommon for the parties with the best intentions to find themselvesfacing substantial unforeseen costs.
Take discussion(not even resolution) of one issue - began with a simple telephone call to yourattorney – that led to attorneys speaking to each other – that led to anothercall between attorneys – that led to a telephone call to you from your attorney– only to realize that the actual aspect of the issue initially presented wasnot addressed – and the telephone game began all over again – and so do thebillable hours. In mediation, the parties talk directly to each other withthe assistance of the mediator who is there to facilitate their communication. All aspects of the issue can be addressed atone time without third party interpretation or interference, as withattorneys. Mediation enables you tohave control over who, what, when, where, how and why discussion unravels.
Mediation can save you time. Parties want the unpleasant process to be over so they can move forwardwith their lives and, if applicable, their children's lives. Unfortunately, that task is difficult toaccomplish through the court system. Experience shows that a divorce case will take no less than 1 year to reach a finaljudgment, and longer when custody is involved. Much of that time is due to the court's calendars, a mechanism that iscompletely out of the parties' and/or attorney's control. This time line does not take into account themonths necessary to resolve a dispute surrounding a complex issue that counse lnow determine require expert services or discovery methods to identify,characterize, value and divide an asset, such as a business, piece of realestate or retirement account.
Mediation tends to be a more fair process and result in amore fair outcome. As every family isunique, with unique interests and needs, it makes a lot more sense to makethose decisions yourselves with the assistance of a trained professional. Starting the process in a cooperativeenvironment rather than an adversarial one sets the tone for a more amicable dissolution process. Mediation is conducted under the shield ofconfidentiality. This aspect ofmediation enables you to speak freely, as eliminates any concern that yourwords, opinions, negotiations, and fears can ever be repeated in a court oflaw. Mediation allows you to brokerbetter long-term solutions all the while preserving your relationship with eachother, which is critical if have children.
What does full service mediation mean?
"Full service mediation" means thatwe will assist you from the beginning to the end of your divorce action. BuchananLaw & Mediation Center completes forms, facilitates communicationbetween the parties, discusses applicable legal principals, and identifiescreative resolutions to your personal issues that will be set forth in anagreement to be presented to the Court. The agreement may relate to a single issue or all aspects of a divorce: custody/visitation,child support, spousal support, and property. Our intension is for you to focus on you and your family while we focuson your case.
What does the mediator do?
The mediator acts as a neutral thirdparty who facilitates the communication between the parties to assist them in reachingsettlement of their issues. During theprocess, the mediator will clarify goals, views, and expectations of each party. Additionally, the mediator is there to minimize the distortion of words. We often "hear" what we want to, which is based on preconceivedthoughts, feelings and ideas. Themediator is there to insure that what was heard is what was meant to bereceived. With both parties present, intentions and meanings can be clarifiedimmediately before misunderstandings that can compromise a couple's efforts toresolve issues. A trained andexperienced mediator will also help the parties to focus on the common goals oftheir separation and thereby deal productively with emotions, which are simplyignored by the Court.
What is the mediation process? What can I expect during mediation?
An initial step in mediation is to identify the issuesas understood by each party. From thebeginning, it's important to insure the parties are on the same page. Then, the focus turns to each party's theneeds and/or interests pertaining to each issue. At this time, the mediator will discuss therelevant legal principles. Onceconfident the issue, interests and law are clear to the parties, the mediatorwill present options to resolve the issue. The options will be built around the parties' similar or differingneeds/interests within the confines of the law. A mediator will continue to help the two of you brainstorm until anagreement is reached.Times do arise where it is best to push away from the tableand return another time. No doubt, partiesbecome overwhelmed with information and emotions that can impair one's abilityto confidentially say "Yes." Before thenext session, the mediator will often provide the parties with direction on howto examine the issue causing impasse, by identifying the principles you thinkare important, rather than your positions, on the issue. Handouts are available to provide as muchassistance as possible to get the parties to a mutual "Yes." Whether at the beginning or at an impasse, the key topresenting your principle and position is preparation. What do I need to bring to prepare?
What do I need to do to prepare?
As with everything, that depends. Every case is different as everycouple/family is special. Resolution ofchild custody issues require a parent's individual consideration of thechildren's schedules and "status quo," along with your availability to providefor their needs. Specificity is essential to avoid future controversy. Support issues examine the parties'respective incomes so related documents are required to evidence same to theother party. Documentation of all assetsand debts is essential so to identify, characterize (community or separateproperty), value and eventually divide.
How do the court papers get filed?
The parties or the mediator can file the papers.
Will I have to appear in court?
Mediation provides the parties withthe opportunity of never needing to step a foot inside the courthouse. All sessions will take place in our officesor by teleconference. We have services available to file and record all required documents.
How long does mediation take?
A key positive aspect of mediation isthat there is no time limit. The partiesset the pace. Most sessions arescheduled for 2 hours, as experience has taught us that people tend to beoverwhelmed after that point. Again, mediation time is your time so you dictatethe length of each mediation session.
How much does mediation cost?
The services of our mediators are billedat an hourly rate – currently $350. Thecost to prepare legal documents is a flat rate paid in advance. As with all aspects of mediation, the parties decide their respective responsibilities for payments of these costs at the initial session.
Will our agreement be enforceable?
All documents signed during mediation are enforceable as anyother contract. When filed with theCourt, the parties have numerous enforcement methods available to them. We also expect the parties to respect theoral agreements reached during each mediation session. Separate agreements can be prepared and filedwith the Court, or the parties can wait until resolution of all issues has beenaccomplished. The terms of their global settlement will be memorialized into their Marital Settlement Agreement tha twill be incorporated into their final Judgment when filed with the Court.
Should/Can I consult a lawyer during the mediation process?
As with everything in mediation, thisdecision is up to the parties. We adviseand encourage the parties to seek outside legal counsel of their choice toobtain individual legal advice regarding your individual interests, rights, andobligations, as well as, to review any proposed Marital Settlement Agreementreached in mediation before signing.
What if my case is too complicated for mediation?
Mediation is a process available toresolve every issue, no matter the complexity, of a family law matter.
What is the difference between private mediation and court mediation?
As its name implies, "court mediation" is a mandatoryprocess required by a state or local statute, or judicial election, andperformed at the courthouse. Each countyhas different approaches to mediation. All courts do require the parties (and in most the children) toparticipate in mediation when child custody/visitation issues are notresolved. Few provide mediation servicesto assist with resolution of support and property issues. Private mediation enables the parties toresolve each and every issue that they want – whether within the bounds ofstandard issues of custody, support and property, or personal issues specificto them.
What if we don't agree on all the issues?
Don't worry if you can't agree on allof your issues. It is still very helpfulto flush out which issues you can agree to and solidify those agreements in anenforceable writing. For example, acustody agreement may be more easily reached and a higher priority due toschool calendars and work schedules, but financial issues can require more timeas more information is often needed for issues related to retirement andpension accounts.
Is mediation still an option if we are not on good terms?
Mediation is a valuable process forcouples who are struggling. It'sabsolutely not necessary for spouses to see eye to eye for mediation to besuccessful. As long as you are willingto try, mediation is the better process for such couples. Litigation often encourages and/or exaggeratesdifferences and animosity. Working through your issues in mediation can actually benefit the couple by improving your communication skills – talking, listening, and hearing. Any opportunity to leave your relationshipwith respect for each other is best for you: as an individual, as a member of alarger family unit, and if applicable, as a parent for your children.
Are there specific reasons needed to file for dissolution or legal separation of marriage in California?
California is a "no fault" state.You canfile for dissolution of marriage or legal separation based on an irreconcilable difference between you and your spouse. That difference has caused an irremediable breakdown of the marriage. "Irremediable" requires you to consider whether or not there is any reasonable possibility that time, therapy, or other action outside of the courtroom would enable you to resolve the difference that led to this filing.
What are the residency requirements to file for divorce/legal separation in California?
At least one of the parties must be a resident of the state of California for 6 months, and of the county in which you intend to file your action for 3 months, immediately preceding the date of filing.
When is the earliest date on which I can be divorced?
A Judgment that changes a person's marital status from "married" to "single" can only be entered after the statutorily required time period of "6-months and 1-day" after the date the Respondent in your case has been served. The clock does not begin upon the filing of the Petition.
What do I need to understand regarding the division of our community property?
As is generally understood, California is a community property state which means the statute requires a Court to divide all assets and debts equally between the parties. Before the division, each party must identify, characterize, and value those assets and debts. Each party to at all property acquired during the marriage is to be divided equally.
The Family Code provides that a fiduciary and confidential relationship exists between the parties which imposes a duty of the highest good faith and fair dealing on each spouse and that neither shall take any unfair advantage of the other. This obligation exists from date of marriage until all assets and debts of the community estate have been divided. That duty includes the obligation to make a full disclosure of the other spouse of all material facts and information regarding the existence, characterization and valuation of the assets and debts. This task would be accomplished by providing financial statements, income tax returns, payroll stubs, appraisals, and other pertinent documentation.
Why would one spouse pay spousal support/alimony to the other and at what amount?
The purpose of spousal support is to financially assist one spouse ("the supported spouse") in meeting their living expenses until that spouse can/has become self-sufficient, consistent with the marital standard of living. Now, you must recognize the fact that it is usually difficult to share the income generated during the marriage between two separate households, such that those households each meet the marital standard of living.
"Temporary spousal support" is an amount determined shortly after the date of separation and is maintained until the entry of a final judgment. This amount is determined by using the DissoMaster ™ calculation which takes into the parties' respective incomes and other income tax deductions.
"Permanent spousal support" is the amount included in the final agreement which is incorporated into a Judgment. The Family Code established the factors the Court must consider when determining the specific amount of permanent support. Those factors include, but are not limited to, the parties' respective incomes, earning capacities, health, age, education, and training. This statute also indicates a time period within which the supported spouse is anticipated to achieve that goal of self-sufficiency. For a marriage in length of less than ten years, that period would be one-half the length of the marriage. However, for a marriage exceeding ten years, the specific facts and situations of the parties will assist them, as well as the Court, in determining for how long one spouse will receive support. The intent remains that the supported spouse shall make every effort possible to be self-sufficient within a reasonable amount of time.
If the parties can't decide, how is child custody determined?
Each county has different procedures to assist the Court, as well as the parties, in making decisions pertaining to the children: mediation (recommending and non-recommending), child custody evaluations, investigations, and hearings. Those decisions are focused in two specific areas of the law: (1) physical custody and (2) legal custody. Physical custody is the time share/parenting plan between the parents, whether daily, weekly, holidays and vacations. The goal of the statute is to insure the children have frequent and continuing contact with both parents. Legal custody involves the parent's participation in making decisions regarding the children's health, education, welfare, safety and overall well-being. No matter the area, the parents and Court must focus on the best interest of the children.
How do we determine an amount of support to be paid to our children?
Child support is actually a right of the children until their majority, which is enforced by a parent until then. The child/children are entitled to live at the standard of both parents. Therefore, financial assistance from one parent to the other parent may be necessary.
The amount of child support is always based on the DissoMaster ™ calculation which takes into consideration the parent's respective time share, incomes, and other tax deductions/factors.
No matter the legal basis for making decisions and results regarding any of these issues, the parties always have the right and ability to resolve their differences outside of these parameters. Each person and case is personal and different. So, your needs are best identified, considered and met by your decisions – one of the key benefits of mediation.
Frequently Asked Questions
Buchanan Law & Mediation Center
Family Focused Assistance
2625 Townsgate Road
Westlake Village, CA 91361
2625 Townsgate Road,Suite 330 Westlake Village, CA 91361 | 805.498.5655 | Copyright © 2012 Buchanan Law. All Rights Reserved.