why-mediate-a-divorce

A Guide to Divorce Mediation in San Diego

A More Civilized and Cost Effective Alternative

In this short guide, you'll learn how divorce mediation may eliminate the emotional and financial strain associated with a divorce proceeding.  

By Joseph Adelizzi Attorney at Law Mediator

Why Mediate a Divorce?

The goal of mediation is to reach a mutually acceptable Marital Settlement Agreement and take all other steps necessary to accomplish the dissolution of a marriage. If done in this fashion, the emotional and financial strain divorce actions put on families will be greatly reduced, if not entirely eliminated.

Divorce actions often degenerate into an all-out war. It does no good for one spouse to offer to divide property equally and provide ample support if the other spouse's objective is to destroy. In a mediated Divorce it is essential that both parties share all pertinent information so that all issues relative to the divorce can be negotiated in good faith. Otherwise, in litigation, whatever money or property you have accumulated during your marriage will probably be consumed entirely by your lawyers because of the high cost of the litigation process.

Mediation also provides a great deal of privacy. In court it is common for 40-50 cases to be on calendar any given morning. When your case is heard, there are 40-50 other couples listening to your private affairs being revealed in an open courtroom. Do you really want strangers to know what assets you have, where you live, when you visit your kids, what you pay in support, what you earn, etc.?

It is cost effective and keeps your personal affairs private. In fact, the California Evidence Code requires confidentiality in mediation.

California Evidence Code Section 1152.5

Mediation

When persons agree to conduct and participate in a mediation for the purpose of compromising, settling, or resolving a dispute in whole or in part:

  1. Except as otherwise provided in this section, evidence of anything said or of any admission made in the course of the mediation is not admissible in evidence or subject to discovery, and disclosure of this evidence shall not be compelled, in any civil action or proceeding in which, pursuant to law, testimony can be compelled to be given.
  2. Except as otherwise provided in this section, unless the document otherwise provides, no document prepared for the purpose of, or in the course of, or pursuant to, the mediation, or copy thereof, is admissible in evidence or subject to discovery, and disclosure of such a document shall not be compelled, in any civil action or proceeding in which, pursuant to law, testimony can be compelled to be given.
  3. When persons agree to conduct or participate in mediation for the sole purpose of compromising, settling, or resolving a dispute, in whole or in part, all communications, negotiations, or settlement discussions by and between participants or mediators in the mediation shall remain confidential.

The Mediation Process

In a mediation, statements are kept confidential and may not be used later as evidence in court. The Mediator is acting as a neutral third party to bring you together on issues such as property division, support and child custody.

Clients come to mediation with some options on these issues. One of the mediator's job is to help you generate more options to resolve your issues. Income and Expense information is shared in a cooperative, problem-solving process with the goal being for the two of you to reach agreement.

If done in this fashion, you will save time, money and eliminate stress.

Divorce Mediation Procedure and Important Terms

PETITIONER - the person who initiates the divorce. There is no advantage or disadvantage to being the Petitioner in a mediated divorce.

RESPONDENT - the Petitioner's spouse. There is no advantage or disadvantage to being the Respondent in a mediated divorce.

TO SERVE - to give the Summons and Petition to the Respondent. Service is usually effected by handing the papers to the Respondent during a mediation session. Papers can be served by mail.

DISSOLUTION - the technical word for divorce.

How the Process Works

  1. The Summons and Petition are prepared and sent to the court, after the Petitioner signs the Petition.
  2. The Court returns the Summons and Petition to the mediators.
  3. Both clients fill out, sign, and exchange Preliminary Disclosure forms.
  4. The mediators serve the Summons and Petition on the Respondent in the mediators' office, or by mail.
  5. Through a series of mediation sessions, agreements are negotiated on a variety of issues. Before agreements are finalized, both clients fill out, sign, and exchange Final Disclosure forms.
  6. The mediators draft a Marital Settlement Agreement.
  7. Both clients look over the MSA and have attorneys review it.
  8. Both clients come back to an "MSA Review Session" to discuss any proposed changes and agree upon revisions.
  9. A revised MSA is drafted. This is usually the final version.
  10. The mediators prepare other legal documents for the court.
  11. The husband and wife meet with the mediators for a "Signing Ceremony," where they sign the MSA, as well as other legal documents.
  12. The MSA and other legal documents are sent to the Court to be reviewed by the clerk and the judge.
  13. Once the judge approves the MSA, the court returns copies of all documents to the mediators, who in tum forward them to the husband and wife. The form entitled "Judgment of Dissolution" gives the date that the divorce will be final; this date is at least six months from the date on which the Summons and Petition were served on the Respondent.
  14. The court mails the husband and wife a form entitled "Notice of Entry of Judgment." This marks the final step in the process.

The Topics for Divorce Mediation

  1. DIVISION OF PROPERTY
    1. Personal property
      1. Business interests Cars
      2. Furniture
      3. Bank accounts Stocks, bonds, notes
      4. Retirement, pensions, profit sharing, annuities Time shares
    2. Real property
      1. Family residence
      2. Other real property
  2. DIVISION OF DEBTS
    1. Bank loans
    2. Personal loans
    3. Credit cards
    4. Educational loans
  3. CHILDREN
    1. Custody (legal and physical)
    2. Scheduling of time
    3. Support: Amount, duration, automatic increase, wage assignment
    4. Insured and uninsured medical and dental expenses
    5. Educational expenses
  4. SPOUSAL SUPPORT
    1. Waiver
    2. Amount, duration, automatic decrease
    3. Wage assignment
    4. Reservation of court jurisdiction
  5. INSURANCE
    1. Medical and dental
    2. Life
  6. INCOME TAXES
    1. Past returns
    2. Future returns (refunds and liability)
    3. Children as exemptions
    4. Liability for capital gains

Another Benefit of Divorce Mediation

Rather than hiring two lawyers at $450 per hour each, your mediator can help you reach an agreement at a cost of $400 per hour combined, resulting in an immediate savings to your community estate.

Remember, divorce doesn't have to result in a civil war. Choose Mediation. It's up to you, NOT a judge.

We have helped others in San Diego

"Joe guided me through a very challenging time as I was going through a divorce and bankruptcy. It was a financial nightmare and he calmly and clearly led me through every step. His estate planning background saved me. His demeanor was always calm, reassuring, and professional. Although I moved out of state as this situation developed, he was available to take my calls and answer my emails promptly. What a fine example of an attorney with principles. He brings a good name to the profession. He would be my first call if I needed legal services again."
Posted by anonymous, March 16, 2017
5/5

Joseph AdelizziReviewsout of 4 reviews

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Call Joseph Adelizzi to learn how you can avoid the stress of an expensive, protracted divorce proceeding:

(760) 632-1338