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An In-Depth Look at Divorce Mediation

Most couples going through a divorce will have never considered mediation as an option. They may assume that mediation is only for couples who are trying to save their marriage, or for those who don't want to go to court. The truth is, mediation is a great choice for any couple getting divorced, and it's becoming more and more commonplace.

Sometimes referred to as divorce without court, mediation is a process where an impartial mediator helps the two parties involved in a divorce come to an agreement. It's often less stressful, easier, and less emotional than going to court. Mediation can also be more cost effective for the parties involved.

One of the positive aspects of mediation is that it often results in a more fair agreement for both parties. Because the mediator is impartial, s/he can help each party see the other's perspective, and this can lead to a settlement that everyone is happy with. Mediation also has a high success rate - in most cases, the mediation process leads to a resolution that both parties are able to live with.

If you're considering divorce, mediation should be at the top of your list of divorce options. It's a less costly, less stressful way to split with your spouse, and it has a high success rate. If you're not sure where to start, talk to the team at Cage & Miles today.

What is divorce mediation?

Overview

Separating from a partner can be hard and confusing. At this point in your research, you likely understand that there is more than one way to proceed with a divorce, including (but not limited to) litigation, meditation, and collaborative divorce. Deciding which path is best for your unique circumstances is a critical part of the divorce process, as no two cases are exactly alike; the path that works for another divorcing couple may not be appropriate for your particular case. How, then, should you go about choosing the best way forward for you?

Oftentimes, couples who are looking for a less stressful and less traumatic way to separate might consider divorce mediation. Divorce mediation is highly effective and increasingly the go-to choice for couples who are looking to divorce without involving the court and still maintain a civil relationship with their ex-spouse. The divorce mediation process offers couples increased privacy and ease that they may not necessarily find in the traditional, litigated divorce process.

Divorce mediation is an Alternative Dispute Resolution (ADR) process used by couples to confidentially resolve conflict outside of traditional family courts, with the goal of finding a mutually beneficial divorce agreement. Couples will hire and meet with a neutral, third-party mediator or group of mediators. These professionals will employ their training and the process of “co-mediation” to help couples agree on standard divorce terms, including (but not limited to): custody of any children, division of assets, and finally agreeing on binding terms. These processes can sometimes involve attorneys for both parties, but do not necessarily have to.

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Definitions

Mediation: Divorce mediation is an Alternative Dispute Resolution (ADR) process used by couples to confidentially resolve conflict outside of traditional family courts, with the goal of finding a mutually beneficial divorce agreement.

Mediator: Mediators are neutral, third-party professionals who employ their training to help divorcing couples overcome any conflicts and come to an agreement or settlement that is mutually beneficial for both parties.

Co-Mediation: Co-mediation involves two or more mediators who work together as a team to assist the divorcing couple to resolve conflict and find a settlement that works for both parties.

What is the difference between mediation and litigation?

Overview

Mediation and litigation are both ways for couples to legally separate and divide marital assets, resolve custody disputes, and address issues of support for both children and spouses. But there is a significant difference between the two approaches. Mediation tends to be more tailor-made and less stressful emotionally than a traditional litigated divorce. Mediation involves a neutral third-party professional, or mediator, who will sit down with couples and help them work out agreements for their divorce terms. Litigation, on the other hand, typically involves lawyers for both parties and is driven by the court. The attorney’s support individual positions of each spouse and typically are not looking to find an agreement that is mutually-beneficial for both sides. If an agreement cannot be found, this can lead to in-court litigation, a process that can be especially traumatic and stressful for all parties involved.

When you file for divorce, you need to file a lawsuit to separate from your partner. Depending on your case, this lawsuit can be settled confidentially or via litigation in court, where a judge will make all decisions on the terms of your divorce.

While litigation and mediation accomplish the same goal of separating and dividing marital assets, their processes differ greatly. Mediation is often referred to as an “uncontested” or cooperative divorce. A “contested” or litigated divorce, on the other hand, often involves lawyers for both parties and is chosen if the divorcing spouses can’t reach an agreement on their own. In a litigated divorce, the judge will decide upon the agreement terms for the divorce. In contrast, mediators act as a neutral third party, working holistically to be family-focused or achieve mutual goals established by the parties. Mediation takes place outside of a court. Allowing parties to tailor a settlement agreement that is the best fit for them.

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Definitions

Divorce: Divorce is the legal process of dissolving a marriage. This may include agreeing on settlements for such things as property division, child custody, child support, and alimony.

Settlement agreement: A settlement agreement is a final memorialization of any terms a couple agreed on in their divorce. This includes terms for how couples will navigate property division, child custody, child support, and alimony.

Litigated divorce: A litigated divorce is a divorce that ends up in court because spouses could not come to an agreement on how to resolve issues pertaining to property, minor children, and financial support.

Contested divorce: If a couple can easily agree on terms for their divorce, it is considered an “uncontested divorce.” If a couple cannot come to an agreement on terms for their divorce, that is considered a “contested divorce.”

Petitioner/Respondent: The spouse initiating a divorce is called the petitioner–they “petition” the court for a divorce. The other spouse is then the respondent, they must “respond” to the petition for divorce.

Third-party intervention: In a divorce, a third party intervention can potentially happen during litigation. This is when a third party states interest in matrimonial assets or other issues related to the divorce.

Confidentiality: In legal terms, confidentiality refers to specific information divulged to certain professionals by a client that cannot be shared without consent from the client. This can include doctor-patient and attorney-client relationships.

Mediation: Divorce mediation is an Alternative Dispute Resolution (ADR) process used by couples to confidentially resolve conflict outside of traditional family courts, with the goal of finding a mutually beneficial divorce agreement.

Litigation: Litigation refers to the legal process of solving disputes in the public court system. This often means a judge will make final decisions. In the case of a divorce this means the judge may decide the terms of your divorce settlement.

What is collaborative divorce?

Overview

You also have a third option if both mediation and a contested divorce don’t seem to quite fit your case. Collaborative divorces are another type of Alternative Dispute Resolution (ADR) that are far more family-focused and tailor-made than traditional divorces that are decided in court via litigation. They avoid litigation, court costs, and cookie-cutter decisions made by a judge. These focus on putting children front and center—not in the middle. 

In a collaborative divorce, participants must sign a no-court agreement saying that they do not want to take this case before a judge. Both parties will also employ their own “team” of professionals. These teams play a supporting role in the negotiation process. Teams include a mental health specialist, an attorney for each party, a neutral financial expert and a child specialist (when children are involved.) These teams work together with clients to draft a “mission statement” for the divorce that both parties will agree upon. This purpose-driven mission statement will guide how the parties settle disputes and the path of the overall resolution. A collaborative divorce can be very helpful for couples with unique financial situations, young children, or a desire to keep their matter private.

Collaborative divorce differs from mediation particularly in that it does include each team advocating for their client. Mediation, again, involves a neutral, third-party mediator who is not advocating for any particular position besides a peaceful resolution for both parties. Collaborative divorces are more cost effective than a contested divorce.  Further there are experts working with each party related to mental health issues, property division and financial education.  Those who wish to have open lines of communications, possess a willingness to resolve things without litigation, and looking for solutions that bring value to all involved are great candidates for a collaborative divorce.

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Definitions

Collaborative divorce: Collaborative divorces are another type of Alternative Dispute Resolution (ADR) that are far more family-focused and tailor-made than traditional divorces that are decided in court via litigation. They avoid litigation, court costs, and cookie-cutter decisions made by a judge.

Negotiation: Negotiation is an informal type of ADR that occurs when both parties sit down with their attorneys and negotiate, or work out, an agreement that works for both parties. The goal is to get both parties to come to an agreement on their own, without a third party.

Uncontested divorce: An uncontested divorce is the opposite of a contested divorce. This means that both parties were able to come to an agreement and the divorce will not need to be litigated.

“No Court” agreement: A no-court agreement is an agreement participants often sign during a collaborative divorce. This assures that both parties will keep the divorce out of litigation, often due to privacy concerns.

Alternative dispute resolution (ADR): Alternative dispute resolution is a process that purposefully attempts to make use of alternatives to keep a conflict out of litigation. This may include making use of mediation, either voluntary or mandatory.

What is a divorce mediator?

Overview

Once both parties agree to continue with divorce mediation, you’ll need to find a mediator. A divorce mediator is a neutral third party hired by both parties involved in the divorce. Mediators must be impartial and neutral in the proceedings. We recommend interviewing a few mediators until you both agree on one who seems like a good fit for your case. Mediators’ effectiveness depends on the willing participation of both parties; a mediator can not force anyone to participate or make a decision, that’s why you’ll need to collaborate to successfully move forward with mediation.

Mediators can often be mediator-attorneys, or attorneys that are trained in the mediation process. At Cage & Miles we only recommend working with mediator-attorneys. Divorce mediators help both parties clarify their needs, wants, and goals, and use the mediation process to help transform those insights into a cooperative dispute resolution that works for both parties. The process of mediation can resolve all issues pending for the parties such as child custody, support and asset division. Mediation takes place outside of a courtroom and is confidential. Only the orders entered with the court will become public record.

 

What does a mediator do in a divorce?

In a divorce-mediation, an attorney mediator will help facilitate productive communication between both parties, with an ultimate end-goal of reaching a settlement agreement to finalize the divorce and avoid court. Mediators will accomplish this by asking you and your spouse questions about your goals and communication, such as:

  • Asking parties to clarify a point
  • Asking questions to help keep communication consistent and clear
  • Providing information about how the legal system works
  • Describing how lawyers, judges, and courts may view an issue
  • Referring you to third-party experts for resources and services

Because your mediator is a neutral third-party, their ultimate goal is to help you and your partner find common ground to bridge agreements. Because they are not a judge, they are not there to make decisions. This also means mediators do not listen to expert testimony in a case. Instead, they are attempting to facilitate an agreement between both parties through education, increasing the ability of the parties to communicate with one another and creative problem solving.

The physical process of mediation can look very unique depending on the case. Mediation can be done with parties in the same or separate rooms. When parties are in separate rooms, this is referred to as “shuttle mediation.” If parties are in the same room, it’s often referred to as facilitated mediation. This is when the mediator helps facilitate the parties speaking directly with each other to come to an agreement. In shuttle mediation the parties make proposals and give them to the mediator to be “shuttled” between the two rooms, where the other party can either accept or make a counter proposal. Mediation can take place with co-mediators and virtually.  It is possible to have parties around the world bridging communications and resolving issues.

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Definitions

Dispute resolution: This refers to a number of different processes that are used to resolve disputes. In divorces this can be arbitration, mediation, or negotiation.

Attorney-mediator: Attorney-mediators are attorneys that are trained in the mediation process. They will help facilitate productive communication between both parties, with an ultimate end-goal of reaching a settlement agreement to finalize the divorce and avoid court.

Division of assets: This is a judicial division made during a divorce case, that describes how property will be split up between two divorcing spouses. This division can be reached through an agreement negotiated outside of court or by a judge deciding in-court.

Confidential Process: A confidential process is a process that cannot be spoken of without consent of both parties involved.

Legal advice: More than just average advice, this refers to written or verbal counsel from an attorney that may affect your rights and responsibilities. Only licensed attorneys are able to offer this.

Shuttle mediation: This refers to a specific, physical way that mediation can be carried out. Shuttle mediation is done with parties and their attorneys in separate rooms, with info and terms “shuttled” back and forth between each team by mediators.

Facilitation: This is another Alternative Dispute Resolution (ADR). The intent is to make information more readily available to both parties–to “facilitate” the flow of information so both parties can negotiate and reach a settlement.

Neutrals (impartial persons): These are professionals, oftentimes social workers, attorneys, or other professionals, who participate in the Alternative Dispute Resolution process. They help divorcing couples work through disputes to find a settlement.

Benefits of mediation

Overview

When it comes to mediation vs. litigation, mediation has many advantages.

Mediation improves communication: Mediation is all about keeping the divorce process amicable and civil. Mediation not only helps preserve relationships, meaning there are still open lines of communication, but in some cases can actually improve communication. 

Mediation can be a very good choice for those with minor children.  It is crucial for children to not be placed in the divorce.  Through mediation, parents can learn tools for co-parenting and ongoing communications.  Studies show that in agreements reached by parties they are more likely to follow the agreement than those ordered by a court.

Mediation is more cost-effective: Mediation is often significantly cheaper than litigation. Because litigation takes a lot longer and is a far more involved process, you can quickly rack up attorney and filing fees. Mediation is also often a “community cost” shared by both parties, or the parties rely on community resources to pay for the expense.  With shared resources and efforts resolution is often more quickly reached.

Mediation is quicker: The mediation process can be completed in as few as three months. Compare this to litigation which can take 12-18 months, on average. This means you spend no time in court, and more time with your family.

Mediation is tailor-made: Instead of having a judge decide the terms of your divorce, you and your spouse will be able to make all the decisions about your split. Mediators work to create value for all involved in the process, which can help you have a better co-parenting relationship if minor children are involved or just make the recovery from your divorce easier and less traumatic.  By creatively working with the parties a Mediator can find a resolution that a court would not be able to reach, simply by looking to interests and assets to find a creative solution.

Mediation is confidential: One benefit of mediation is that it is an entirely confidential process. By keeping your divorce out of the courtroom, you can be assured that everything stays between you and your spouse. Only the final judgment and its attached documents will become public record at the end of your divorce.

Mediation still allows you to access legal advice: While many mediators are attorneys, mediators do not offer legal advice. However, you will still be able to hire your own consulting attorney in the mediation process. Consulting attorneys can advise you on the legal process when you decide to go through with mediation. It’s recommended that you go into the mediation process with a consulting attorney of your own, as a consulting attorney will help you navigate the complex family law issues and keep you informed so you can reasonably negotiate in your particular case.

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Definitions

Mutually beneficial: A settlement is mutually beneficial when both sides get something of value out of it. Instead of a divorce or settlement that is one sided, this can help keep a conflict to a minimum.

Preservation of relationship: Preserving a relationship during a dviorce can be a huge benefit for both parties involved, especially if they are raising children together. This can prevent familial conflict when moving forward.

Mediated settlement: A mediated settlement is a settlement that has been come to through the process of mediation. This may include the use of mediators or co-mediators to help couples find an agreement that works for them.

When is divorce mediation not a good choice?

Overview

Successful mediation depends on the degree of conflict or dynamics in your partnership. There are many cases when a divorce mediation is not a good decision, including if a spouse is hiding assets, forcing one to divorce under duress, threatening physical harm or abuse, unwilling to have necessary discussions about separation, or trying to minimize their legal costs. If any of these situations describes your case, you do have options, including litigation with some protections, like restraining orders.

Spouses who are hiding assets are not good candidates for mediation. When divorcing or legally separating, you will be required to fill out a Schedule of Assets and Debts; these are forms where you list all your assets and debts, both shared and separate. If you find push-back from your spouse over this or believe they are hiding assets, you will not have a successful mediation. In California, upon the filing of the Petition automatic temporary restraining orders (ATRO’s) go into effect. While “restraining order” may sound scary, these simply ensure mutual respect for financial assets going forward. It keeps parties from making any decisions about shared assets and minor children without the other’s consent or a court order. While ATROs should make a spouse play fair, some may still try to hide their assets, in which case you may need to employ a forensic accountant.

Divorces with an even higher degree of conflict, such as cases where domestic violence is present, are also situations when divorce mediation is not recommended. Oftentimes these cases require a Domestic Violence Temporary Restraining Order (DVTRO). Abuse doesn’t always necessitate physical violence. California has also expanded its Domestic Violence Prevention Act to also include “disturbing the peace.” There are also special considerations if you are divorcing an alcoholic. If you are experiencing domestic abuse, you have other divorce options.

The physical process of mediation can look very unique depending on the case. Mediation can be done with parties in the same or separate rooms. When parties are in separate rooms, this is referred to as “shuttle mediation.” If parties are in the same room, it’s often referred to as facilitated mediation. This is when the mediator helps facilitate the parties speaking directly with each other to come to an agreement. In shuttle mediation the parties make proposals and give them to the mediator to be “shuttled” between the two rooms, where the other party can either accept or make a counter proposal. Mediation can take place with co-mediators and virtually.  It is possible to have parties around the world bridging communications and resolving issues.

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Definitions

ATRO: An ATRO, or automatic temporary restraining order, is a court order that prevents parties in a divorce from selling, transferring, or borrowing against property involved in the divorce.

DVTRO: A DVTRO, or domestic violence temporary restraining order, is a restraining order taken out in the case of domestic violence or abuse. This doesn’t necessarily have to be physical, it can also include “disturbing” the victim’s peace.

Schedule of assets & debt: This is a document the parties must complete in a divorce. This mandatory form lists both shared and separate retirement funds, real estate, vehicles, stocks, timeshares, credit cards, loans, and other assets.

Duress: In a divorce, duress refers to the act of threatening or otherwise using unlawful acts to compel a spouse to sign divorce papers. This can lead to the divorce case being reopened if duress conditions are proven.

Degree of conflict: During a divorce, the degree of conflict can dictate how a divorce will be settled. High-conflict divorces may not be the best choice for mediation or other alternative dispute methods.

How do I prepare for divorce mediation?

Overview

If you’ve decided that divorce mediation is the right choice for your case, you will need to begin to prepare for the process. First, you and your spouse will have to agree on a mediator. We recommend interviewing two or three attorney-mediators before settling on one.

After you’ve found a mediator you’d like to work with, you’ll need to compile financial information for both parties. This will likely include a Schedule of Assets and Debts that list both shared and separate retirement funds, real estate, vehicles, stocks, timeshares, credit cards, loans, and income.

Next, you’ll need to sit down and really consider your goals for mediation. What do you want from mediation? What do you need from mediation? Be prepared to defend your wants and needs with justifications; really consider the “why” in all your goals. Also keep in mind that in order to have a successful mediation, you may have to be open to resolutions that balance your wants with those of your spouse. If you have minor children, you’ll also need to consider what a child custody agreement looks like that supports the best interests of your children.

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Definitions

Date of separation: California defines the date of separation as “a complete and final break in the marital relationship . . ., as evidenced by both of the following: (1) The spouse has expressed to the other spouse his or her intent to end the marriage. (2) The conduct of the spouse is consistent with his or her intent to end the marriage.”

Income and expense declaration: This is a form that is required to be filled out during a divorce. It offers an overview of finances, it includes reporting income as well as financial obligations. This declaration can be used to calculate child and spousal support.

Voluntary disclosure: This is the ongoing duty each spouse owes to the other to provide financial information to one another.

Assets: Assets in a divorce can be either community or separate. Assets can be, but are not limited to, real estate, stocks, income earned during the marriage, art, jewelry, and vehicles.

Debt: In a divorce occuring in a community property state like California, most debts incurred during a divorce, even by one partner, are legally considered to be community property–meaning they belong to both spouses.

Income: In a divorce, income is used to calculate agreements related to child and spousal support. Examples of income may include salaries, wages, and tips, disbursements from a trust, and more.

Best interest (as defined by the State of California): This is a standard used in deciding child custody agreements. In California, this includes weighing “frequent and continuing contact” with both parents, as well as the health and safety of the child.

The mediation process

Overview

Now that you’ve found a mediator, you might be curious about what the mediation process looks like. How mediation works and what mediation looks like depends on what type of divorce-mediator you have. Typically, mediation takes about one to five sessions, each lasting a few hours. Each party can have their consulting attorney present. Mediators may use a facilitative approach, a shuttle approach, or something different like a transformative approach or evaluative approach to mediation. A transformative approach is begun with the intent to impact future relationships and ways of interacting. An evaluative approach to mediation is all about discussing your position and talking about its merits. Whatever approach you and your mediator take, open and clear communication is key to working out a settlement that won’t land you back in court six months later.

The mediator will discuss goals and concerns for both parties, including how they would like to split up community property. California is a community property state, meaning any property acquired during a marriage is considered to be owned equally by both spouses, regardless of who acquired it. You will also figure out if spousal support is necessary. Your mediator will help you come to an agreement on any concerns and issues, and will often start by tackling smaller issues so both parties can build trust. Ideally, the end goal is a full resolution of all issues. But don’t despair if you are unable to settle your entire matter, as you will still be able memorialize all agreements reached in a Judgment. Then only limited issues will be left for resolution in court.

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Definitions

Community property: this is property that belongs to both spouses, usually acquired during the marriage.

Partial mediation agreement: This is what happens if you are unable to settle your entire divorce during mediation. You may be able to settle some issues, memorialize those agreements in a Judgment, and come to a partial mediation agreement.

Spousal support: Also known as alimony, this support is intended to help make sure both parties can maintain their standard of living post-divorce. This usually entails the higher-earning party paying the other party support.

No-fault divorce: a divorce where there is no requirement to prove wrongdoing on one party’s behalf.

Property settlement agreement: A property settlement agreement is a legally binding document that describes agreements between spouses relating to what property each will receive and how assets will be dealt with in the divorce.

Consulting attorney: A consulting attorney is an attorney that consults you on legal matters should you choose a form of Alternative Dispute Resolution. They may not “represent” you but they are able to give you legal advice.

How does child custody mediation work?

Overview

For those with children, child custody and child support are important aspects of a divorce. Legal custody can cover everything from who gets to make decisions about a child’s education, religious practices and healthcare, or physical custody; to where the child lives after a divorce, also known as physical custody. Child custody mediation is an important process that helps parents learn more about the best interests of the children and come to agreements on how to share (or not share) legal and physical custody of their children. Custody mediation can help solve costly and time-consuming custody disputes without court.

In California, judges award custody on the standard of what's in the best interest of the child. This means the judge will take a holistic approach when deciding custody, considering factors like the child’s age, health, location, ties to family and friends, wishes, and the guardians’ histories of domestic abuse and substance abuse. When working out a custody agreement, always remember that custody is about the well-being of a child, not your personal preferences. While it’s not definitive, children do get some say in custody; courts can take their opinion into consideration if the child is mature enough.

Custody can shake out in many different ways. You can have joint or “shared” custody, both physical and legal, where both parents share decision-making as well as where the children reside. You can have sole custody, where one parent gets sole decision-making power and the child only lives with them. You can also end up with a mixture of these. In California, custody starts from the position of shared custody. In California, child support is set pursuant guideline, determined by looking at the earnings of each parent, the parenting plan and related deductions. The obligation for child support remains through a child reaching 18 or 19 and remaining a full-time High School student.

When there is a disagreement related to a parenting plan, custody mediation is court-ordered. A report is issued which provides recommendations. Once a custody agreement is reached there may be reasons for changes over time, a parenting plan will often change as your or your child’s life changes.

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Definitions

Child custody: Child custody relates to certain decisions made during a divorce that affects how a child will be raised. This can include things like where the child lives, details about the child’s education and healthcare, and if parents will share custody.

Custody disputes: A child custody dispute occurs when spouses cannot agree on decisions relating to child custody. In these cases the court may decide, taking into account the best interests of the child.

Physical custody: Physical custody refers to where the child physically lives on a regular basis. Both parents can share physical custody, or only one parent can have physical custody, with the other often granted visitation rights.

Legal custody: Legal custody refers to custody in which the custodial parent gets to make any decisions about the child’s education, healthcare, or other long-term decisions about raising the child.

Shared custody: Shared or “joint” custody is when both parents equally share custody of their child. This custody can be either physical or legal or a combination of the two.

Sole custody: Sole custody is when only one parent has custody, either physical–meaning the child lives primarily with them, or legal–meaning they are the only parent able to make decisions for the child.

How long does mediation take to finalize a divorce?

Overview

When you file your petition for divorce, you may be wondering how long your divorce will take. This all depends on what path your divorce ends up taking.

Litigated divorce, where your divorce ends up in court before a judge, is time consuming and costly. At a minimum it will take 12 to 18 months for your divorce to be finalized. Because this is time consuming, courts will often try to get parties to settle before going to litigation. This often takes the form of a mandatory settlement conference (MSC). An MSC is a final mandatory meeting intended as a diversion from the courts to give you a last chance to settle issues before litigation in court, usually overseen by a judge. But here you are dependent on court availability and local rules.

Mediation can be significantly quicker. Parties who work together can settle their divorce in as little as 90 days. More complex cases can take six months. Once you do come to an agreement, you will submit a marital settlement agreement. Your marital settlement agreement is a document that allows divorcing spouses to document their decisions for child support, spousal support, division of property, and child custody. Once that is submitted, a judgment for dissolution is entered. Your divorce judgment is a court order that finally ends your marriage.

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Definitions

Mandatory settlement conference (MSC): An MSC is a final mandatory meeting intended as a diversion from the courts to give you a last chance to settle issues before litigation in court, usually overseen by a judge.

Marital settlement agreement: A marital settlement agreement is a final document that allows divorcing spouses to document their decisions and agreements for child support, child custody, spousal support, and division of community property.

Divorce Judgment: A divorce judgment is a court order that finally ends your marriage. This includes the court’s final decisions on your divorce settlement, and will list the exact day that your marriage is officially over.

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