Mediation Vs. Court
To make your decision easier, it will help to compare mediation to litigation. You can then easily see how both can help you finalize your divorce but how they take different paths to get to that conclusion.
Mediation involves a neutral third party who facilitates discussions between you and your spouse. Mediation lets you control the conversation, and the mediator is just there to help keep communication open and on track. The goal is working together to reach a mutually acceptable agreement where you separate your lives.
You have the chance to have meaningful discussions. You can get to the heart of issues, and uncover your true desires, which will lead to easier decision-making that proves beneficial to both of you. The mediator will ensure the divorce negotiations proceed in accordance with California state laws and answer any of the couple’s legal questions during their discussions. Mediation takes only as long as the divorcing spouses require to negotiate the terms of their divorce into a mutually agreeable arrangement.
In mediation, your attorney acts as an advisor. He or she can give you legal advice and make suggestions. He or she will not take over negotiations. Your lawyer may speak with your spouse’s attorney if you ask for that, but typically, your attorney is only there is assist when you need it.
In contrast, when you go to court in Folsom, CA, the judge is fully in charge. If the judge wishes to make a decision or ruling, he or she has every right to do so without consideration of what you want. In addition, the court setting is one side versus the other. It is less about working together and more about battling it out. One side emerges victorious from a courtroom because that is the general goal when people go to court.
While divorce law aims to provide fairness, the courtroom atmosphere still allows for one party to feel as if he or she is the winner, and the other party is the loser. This is not ideal for a divorce where you need to work together, and the law should ensure equality and what is best for everyone involved.
In the courtroom, your attorney takes the lead as your representative. He or she will generally handle all communications between you and your spouse, speaking through his or her lawyer. Your attorney will manage everything from negotiations to dealing with the court.
Both situations end with the court finalizing your divorce, but the path to get there is vastly different. Mediation can bring some sense of control and peace to the situation, whereas going to court often causes emotions to boil over because it takes away control and doesn’t encourage working together.
What Can I Negotiate in Mediation?
It is not uncommon for divorcing spouses to assume their cases are too complex to negotiate and that litigation is the only option. With an experienced Folsom divorce mediation attorney assisting you, it is possible to approach difficult divorce cases with confidence and take full advantage of the benefits of mediation.
You and your spouse may choose to have your respective legal representatives attend some or all of your mediation sessions. Some of the things you may need to discuss include:
- Separate ownership rights. Some assets, such as things a spouse owned prior to marrying and inheritances, remain their owner’s separate property through marriage and divorce. However, it is possible for some property to transmute to community property in certain situations. Your Folsom divorce mediation lawyer can help you establish your separate property ownership rights in divorce proceedings.
- Child custody and support. If you and your spouse have children, the court will rule in favor of protecting their best interests if you litigate your divorce. However, your idea of your child’s best interests will likely differ significantly from the court’s interpretation under strict legal statutes. You and your spouse can use mediation to develop a mutually agreeable parenting plan you may not have been able to arrange through litigation. It’s also possible to come up with a mutually agreeable support plan, and your respective attorneys and the mediator can ensure the agreement aligns with state law.
- Property division. Any assets deemed community property of both spouses is subject to a strict 50/50 division in a California divorce. Once you have negotiated your separate property and have fully valued the remaining community property, it is possible to exchange assets for others of equivalent value so long as both spouses emerge with as close to an even share as possible. It’s not uncommon for divorcing spouses to civilly negotiate and compromise on property division through mediation, even if the shares are very slightly uneven. On the other hand, litigation may coerce liquidation of many marital assets and a strict 50/50 division of the proceeds, even if this goes against the spouses’ wishes in some cases.
- Alimony and spousal maintenance. Many divorcing couples earn unequal incomes, and the sudden shock of self-reliance is very difficult for many lower-earning spouses. Alimony or spousal support exists to ensure a lower-earning spouse has the financial support to continue enjoying a similar quality of life to that which they had while married. Alimony is often granted temporarily until the recipient remarries, cohabitates with a new partner, or meets specific income requirements. Permanent alimony may also be negotiated or awarded at trial if the recipient is too old or medically unfit to work, has a severe medical condition or disability, or has a clear need for long-term financial support.
- Debt responsibility. California’s community property law applies to marital property and marital debts alike. The divorcing couples may argue responsibility for certain debts, but generally, all debts incurred by either spouse during the marriage become the shared responsibility of both spouses. One possible exception to this could be a hidden credit card or other debt one spouse deliberately concealed from the other.
Divorce mediation allows a divorcing couple to negotiate these terms and develop more individualized divorce agreements. Once the couple has negotiated their terms, their attorneys and the mediator can assist in drafting a proposed divorce agreement, which is then sent to a Folsom County family court judge for final review and approval. Unlike divorce litigation in which everything said at trial is recorded in the public record, all of your mediation sessions remain confidential, and only the divorce decree becomes public record. Divorce mediation is the best option for any divorcing couple that does not wish intimate details about their marriage to become public knowledge.