Divorce mediation has quickly become the preferred method for American couples to handle the dissolution process. There are many reasons behind this trend, including the significant savings of time and money that mediation can provide compared to litigation costs. The litigation process can be incredibly expensive and taxing, even in seemingly simple divorce cases. Mediation provides a divorcing couple the opportunity to streamline their divorce experience and save money on legal fees. It also keeps the process firmly within their control and helps them reach a more rational and personalized result in their divorce case.
Many people wonder, is divorce mediation legally binding? The simple answer is yes. Divorce mediation is binding as soon as both of the divorcing spouses sign their mediated divorce agreement. If you opt for divorce mediation, the contract you and your spouse negotiate throughout your mediation sessions will be a binding agreement on the same level as a divorce order drafted by a judge.
Understanding the Mediation Process
Divorce mediation is a fairly straightforward process. The divorcing couple and their respective attorneys meet and negotiate the terms of their divorce under the guidance of a neutral mediator. This mediator is tasked with guiding the negotiation and ensuring the conversation remains productive. However, they cannot provide either divorcing spouses with any specific legal advice. Even if your spouse is agreeable to the idea of mediation and is willing to negotiate civilly, you should still have legal representation from an experienced divorce attorney who will ensure your interests remain protected throughout the mediation process.
During mediation sessions, the divorcing couple negotiates the terms of their divorce. This can include property division negotiation, allowing the couple to reach a property division determination that is more logical for their individual needs as long as their negotiated property division agreement aligns with state laws. If you litigate your divorce, the judge may decide you need to liquidate certain assets and divide the proceeds. In contrast, mediation affords you and your spouse the chance to negotiate different property division terms that may help you avoid the liquidation process. You can also negotiate an alimony agreement if state law indicates that one of you will owe alimony to another.
Divorce Matters That Require Court Approval
While mediation can provide you and your spouse with the opportunity to privately negotiate many terms of your divorce, there are some matters that will require court approval. Specifically, California state law does not permit a divorcing couple to privately negotiate child custody or child support. If you and your spouse have children, the mediation process can allow the two of you to develop a parenting plan, but this is not legally binding until a judge reviews and approves it.
Your parenting plan can outline your wishes and expectations regarding child custody and child support. While this parenting plan is not legally binding, it can significantly reduce the amount of time and money you must spend litigating these issues. However, no matter how detailed a parenting plan you and your spouse may craft, it will ultimately need to pass a California family court judge’s review. The judge may approve it if it aligns with state law and protects the best interests of your children. Still, if you submit a mediated parenting plan to a judge, you should expect them to make some alterations to your plan before they approve it as a formal custody and support agreement.
Can a Judge Overturn My Mediation Agreement?
A mediated divorce settlement is functionally a contract that becomes incorporated into a final divorce decree, making them legally enforceable. However, it is not uncommon for someone who has signed a mediation agreement to later realize the mediated settlement was unfair in some measure.
If you must revisit your mediated divorce settlement at a later date, the court will likely set the mediation agreement aside if one of the signing parties can provide evidence that they signed the agreement with inaccurate or incomplete information. The courts might do this as well if the couple lacked the ability to make a reasoned decision at the time of the contract’s signing. If there is any presence of misrepresentation of material facts, fraud, overreaching, or duress, these factors can also constitute grounds for the court to overturn a mediated settlement.
Best Practices for Getting the Most Out of Divorce Mediation
Every divorce mediation process is unique, and no two marriages are exactly alike. While there is no solid formula to guide you through the mediation process as efficiently as possible, there are a few tips and best practices you should keep in mind if you want to have the most positive experience possible with the mediation process:
- Be willing to negotiate. One of the most common myths surrounding mediation is that both spouses must be willing to agree on every aspect of their divorce for the mediation process to work. This is not necessarily true. While both spouses must be willing to mediate, there is no impetus to be agreeable to everything. The benefit of mediation is that it provides the divorcing spouses with an opportunity to negotiate the terms of their divorce one by one in a more relaxed atmosphere. Both still maintain the right to argue in favor of their respective best interests.
- Secure legal counsel. Many people hold a misconception about the role of the mediator. This individual cannot provide you with legal counsel. They may clarify legal statutes so both you and your spouse can clearly understand how state laws play into your divorce proceedings, but their main job is to guide the discussion and help the two of you reach a mediated settlement. You should have your own divorce attorney represent you throughout this process so you can have peace of mind knowing you have a legal advocate looking out for your best interests.
- Perform your due diligence. Divorce mediation can raise complex questions concerning property division, alimony, and other matters. It is best to approach the negotiations of these topics armed with as much evidence and information as possible. This requires extensive fact-finding, such as recovering documents that prove your separate property ownership rights over certain assets and records of communications that can prove instrumental to your negotiations.
- Be prepared to compromise. As you begin divorce proceedings, you will automatically start thinking about your best-case scenario in terms of the overall outcome of your divorce. It is crucial to temper your expectations and realize that you may not get exactly what you expect out of your divorce. Willingness to compromise is essential for the divorce mediation process to work. Consult with your attorney to help you understand what to expect from the divorce mediation process, which will allow you to approach the situation with more realistic expectations.
- Protect your estate plan following mediation. Once you complete the mediation process and obtain your divorce decree, the process of handling your divorce may not necessarily be entirely over. You should revisit your estate plan to ensure it aligns with your new reality. For example, if you recently divorced, you would probably not want all of your estate to go to your ex-spouse if you were to die unexpectedly. Your attorney can potentially help you revise your estate plan or recommend an estate planning lawyer who can align your estate plan with your recent divorce decree.
- Understand that you may need to revisit your divorce decree in the future. The final divorce degree you obtain following mediation will likely be a blend of your mediated contract terms and a judge’s decisions required by state law. While this divorce decree may seem comprehensive and final, the reality is that family law is complex and allows for the revisitation of a family court order in light of changing circumstances. You or your spouse may file a petition for post-judgment modification if either of you need to alter the terms of your divorce order for any reason. For example, if you are required to pay child support and suffer a disabling injury that prevents you from working, your attorney can help. Together, you could file a post-judgment motion to modify your child support obligation in light of your new circumstances. An approved modification becomes legally binding once a judge signs off on it.
These best practices should help you manage the divorce mediation process more confidently. Remember to consult your attorney about any aspect of the process that is unclear to you and do your best to provide your attorney with as much information as possible so they can provide the level of legal representation you expect.
If you are ready to end your marriage and are unsure of the best legal approach to the situation, call our firm. One of the best things you can do is to contact an experienced divorce mediation lawyer as soon as possible. Your attorney can help you understand the process in greater detail and help you understand the unique advantages and challenges your divorce case presents. Reach out to an experienced divorce attorney as soon as possible so you can approach your divorce with greater confidence.