Procedural Aspects of a Mediated Divorce
The goal of this article is to explain what divorcing spouses can expect from a procedural standpoint in a mediated divorce. Procedure relates to the forms and filings the court has to process to make the spouses officially divorced in the eyes of the law. This article talks about some, but not all of the paperwork necessary to complete a divorce in California.
Step 1: Filing the Petition and Summons for Dissolution of Marriage
The petition and summons forms serve a couple different purposes. The petition is filed by the party who is seeking a divorce (the “Petitioner”). The petition states the Petitioner’s opening position regarding the facts of the marriage and what the Petitioner is hoping to achieve in terms of support. For example, the petition includes information like the length of the divorce, why the parties are being divorce, whether the petitioner intends to seek physical or legal custody of the child, and whether the petitioner intends to pay or receive spousal and/or child support.
The summons explains to the party who did not ask for the divorce (the “Respondent”) that they have 30 days to respond to the petition from the time the Respondent is served and that if the Respondent doesn’t respond, the court can make orders affecting the divorce. The summons also includes standard restraining orders for all divorces such as; minors cannot be moved from the state, neither party can adjust their insurance coverage, and neither party can hide assets/debts.
Step 2: Serve the Petition and Summons
The petition and summons have to be served to the Respondent. Service can take place by mail or in person, so long as the party who sends or delivers the package is over the age of 18 and not one of the married spouses. In mediation, the goal is to serve the Respondent at a time and place of their choosing so they are not caught off guard or embarrassed. For example, nobody wants to be served at work or on the day of a big event.
Step 3: File the Response
Like the petition, the response states the Respondent’s opening position regarding the facts of the marriage and what the Respondent is hoping to achieve in terms of support.
Step 4: Serve the Response
The response has to be served to the Petitioner. Service can take place by mail or in person, so long as the party who sends or delivers the package is over the age of 18 and not one of the married spouses. In mediation, the goal is to serve the Petitioner at a time and place of their choosing so they are not caught off guard or embarrassed.
Step 5: Declarations of Disclosure
Under California family law, both parties are required to disclose all of their assets/debts and income/expenses. In mediation, most professionals work with the Schedule of Assets and Debts form (FL-142) and the Income and Expense Declaration form (FL-150). The FL-142 form lists the assets and debts of the party who fills out the form. The FL-150 form spells out the income and expenses of the party who fills out the form. The reason the courts require declarations of disclosure is because it would be impossible to negotiate a division of assets and debts, unless both parties have a clear picture of what’s on the table. Another reason disclosure statements are done is to stop spouses from lying and to hold them accountable if it’s later discovered that one or both spouses was dishonest about their assets and debts. The declarations of disclosure leave a paper trail of exactly what was said.
In mediation my clients typically only do one round of disclosures. In other divorce situations, spouses might do two rounds of disclosures. In mediation, the idea is that both parties are being transparent so they only need to go through the exercise of doing the disclosures once. If the spouses are only doing one round of disclosure, they will also file a Waiver of Final Declaration of Disclosure form (FL-144) which says that spouses are only doing one round of disclosure.
The hardest part for most spouses is gathering the documents that get attached to the disclosure forms which corroborate the information on those forms (ex. bank statements, mortgage statements, credit card statements, 401k statements, etc.). There’s nothing actually hard about gathering these documents, people just tend to procrastinate.
Step 6: Mediation
Once the spouses know what needs to be discussed with their assets/debts and support, then the spouses can start to mediate. At the end of each mediation session, spouses are supplied with a memo of understanding that highlights the verbal agreements that were made during the session. The memo of understanding is not a binding document but rather serves as a bookmark of where the spouses left off last time and what they need to do to prepare for the next session.
Step 7: Settlement Agreement
After the spouses have agreed on all issues related to their divorce, the mediator or the attorneys will draft a divorce settlement agreement. The divorce settlement agreement is the only binding document related to the division of assets/debts, parenting plan, and support. This document is signed by both parties and their lawyers, then submitted to the court for judgment. There are a handful of other documents that accompany the settlement agreement when it is submitted to the court.
Step 8: Judgment Entered
A judge will review the settlement agreement and either enter the agreement or reject it. An agreement is usually rejected because a form was incorrectly filed or a procedural step was skipped.
This article is not intended to be legal advice and should not be taken as such. Always consult with your attorney regarding all aspects of your divorce. If you have questions regarding mediation, reach out to my office through asapittmediation.com, firstname.lastname@example.org, or (424) 202 – 4239.