Mediation is often the best way for a divorcing couple to achieve the best and fairest possible outcome in caring for their children and dividing their assets. The courts give very wide latitude to agreements negotiated by people during mediation.

Mediation is a process where the two parties sit down with a neutral attorney or retired judge, and discuss what their expectations are and how each can be achieved. It is not unusual that the two people have widely differing expectations at the first meeting, often somewhat unrealistic. The job of a mediator is to drive the parties toward an agreement that achieves a best-case outcome within the confines of reason and the law.

Things people say that are unrealistic

Sometimes the most sympathetic, well-intentioned people can be driven to extreme frustration by the deterioration of their relationship. This can lead to expectations such as the following:

1) He/she cheated on me and announced that he/she doesn’t love me anymore. So that means I get to keep the kids, right? I don’t want him/her around the kids.

Answer: this is not going to happen in the absence of extreme circumstances. Children are not a negotiating chip, and we do not punish our spouses or co-parents for their perceived misdeeds by withholding access. The courts look at what is in the children’s best interests. Sometimes legitimate grievances exist that threaten the children’s safety or welfare (drug abuse, violence, sexual abuse, etc), and in these cases we are often able to fashion a mutually acceptable remedy.

2) He/she cheated on me and announced that he/she doesn’t love me anymore. So that means I get to keep all of our assets, right?

Answer: California is a no-fault state, which means it doesn’t matter whose misbehavior caused the divorce. In the absence of a written agreement changing the character of assets (and sometimes despite such an agreement), what you earn during the marriage belongs to both of you. This is called “community property.” So yes, even though you were the only breadwinner, and you always kept separate accounts, everything you earned during the marriage, and assets acquired with those earnings, belong to both parties equally.

There are as many misconceptions as there are individual cases. The parties will benefit greatly from a constructive conversation with a mediator in almost every case. Protracted litigation is one alternative, but it generally makes both parties unhappy, destroys already frayed relationships, and mires everyone in debt. I have seen multiple parties give away their children’s college education to their attorney just to spite the other parent. They caused a lot of grief, and the people who carried the bag at the end were their own children, who were forced to incur life-changing debt to pay for college. Other people lost houses, retirements, and savings to prosecute or defend meritless accusations.

The cost of a mediation is almost always a fraction of the cost of a hotly litigated divorce. I am glad to have a brief and frank conversation with the two of you to compare cost and outcomes.

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