Pursuing a divorce in California is rarely an easy decision. Once you’ve made that decision, selecting the right divorce process can be just as challenging. Whether you are the high-income earner or the stay-at-home parent, if this is your first divorce or your third, and no matter how high your net worth, the lack of certainty as to your future can create chaos at a time when you need clarity the most. The first steps you take can result in a good outcome, or the realization of your greatest fears.
In every divorce there are two universes. You have the real-life universe where you and your children feel the impact, physically, emotionally, and financially in your day-to-day life. Then there’s the legal universe, where forces beyond your control—the law—will determine your future. Both are important and often conflict. Your first challenge will be deciding which universe takes priority.
Reconciling Your Real-Life Universe vs. the Legal Universe
In the real-life universe, your focus may be where you live, the relationship you have with the other parent, and the ability to recover financially. In the legal universe, the focus shifts to getting what you can under the law—the “win.” When you and your spouse are not able to agree, the legal universe provides answers.
The law decides how much time you spend with your children, how much you receive or pay in support, and how your assets and debts are divided or whether assets must be sold. Your personal/family goals are not relevant in the legal universe.
Once you have decided which universe takes priority, you will find that certain divorce process options are a better fit than the others. Each process has its own benefits and risks that you should understand.
The Four Types of Divorces in California
You may have read about celebrities divorcing through a collaborative process (“conscious uncoupling”): Gwyneth Paltrow, Chris Pratt, Walt Disney, Robin Williams. While the confidentiality of mediation (adopted in the collaborative process) is extremely attractive to those in the public eye, the complexity and high-asset / high-income nature of these divorces often requires more professional resources that include not only collaborative trained lawyers but also financial, child specialist, and therapist professionals to keep everyone informed, focused, and making progress.
In a collaborative divorce in California, a lot of time is spent not only gathering financial information but also understanding the goals and concerns of each person involved in the divorce, including the children. The focus here is planning for a successful future after the divorce, as the couple define “success.” When agreements are reached, court appearances are usually not necessary. If you do not reach an agreement, your divorce lawyers cannot take the case to court. By law they are “disqualified” from litigating; you would have to hire new lawyers.
Mediation for Divorce
For those who want help resolving their divorce in California without having to go in front of a judge, mediation is an attractive option. In mediation, couples work with a neutral facilitator (usually a lawyer), or a team of neutral facilitators (legal, financial, family) to help them set goals and identify potential obstacles, and ultimately co-create binding and enforceable agreements. This tends to be a less adversarial process, but that does not mean that it is completely without conflict. Mediation puts you in the driver’s seat, deciding what the outcome will be. This can be challenging: you are responsible for the outcome, not your lawyer and not your judge.
Mediation works best, even in high-asset, high-income, and/or high-conflict divorces, when both spouses want to resolve. It offers the highest level of confidentiality and privacy of any divorce process in California. It is important to have legal advice when making decisions in your divorce. Your mediator is not your lawyer and cannot advise you individually. While there is no requirement that you have your own lawyer in mediation, it is strongly recommended. If there has been physical harm or abuse or threats thereof, or when one spouse has started hiding or liquidating assets, mediation may not be a safe process. In these types of extreme situations, court intervention may be necessary.
Along with the do-it-yourself process, litigation (the contested court battle) has historically been the most common way for people to divorce. Here, each person hires their own lawyer and the judge decides the outcome. For many, one benefit to this process is that all communications go through the lawyers—you don’t have to speak to your spouse. Some people also prefer to not have to make the decisions themselves or negotiate with their soon-to-be ex; they prefer to let the judge decide for them.
If you have an uncooperative spouse this may be your only option. Litigation also tends to be the most expensive way to divorce, both in terms of money and psychological/emotional trauma to self and children. About 95% of all contested divorces resolve before trial. Sometimes, resolution comes only after all funds have been spent on legal fees and there really is nothing left to divide. Other times, the divorce attorneys are able to guide their clients towards an early resolution through compromise and cooperation.
About 80% of the litigants in California’s divorce courts choose to represent themselves. This tends to be the least expensive way to divorce—if you know what you’re doing. Divorce courts, forms, and processes can be very confusing. When representing yourself (“pro per”), there is no special treatment because you don’t know the Family Code, Evidence Code, Code of Civil Procedure, and the local rules. Court staff, including the judges, are not your lawyers and therefore cannot give you legal advice. This includes preparing your legal forms. Self-help centers can provide limited assistance with forms. Not knowing the law—how to complete service, provide notice, introduce evidence—can result in the judge ruling against you. This is why consulting with an experienced divorce lawyer in California is important.
Which is the best divorce process for you?
Consider the following questions when deciding which type of divorce process to pursue.
- What are your goals moving forward?
- How do you make decisions? Are you more confident/engaged with an advisor assisting you or are you good at negotiating on your own behalf? What about your spouse?
- Where are you both, emotionally? Are you ready for the divorce? Is your spouse still in denial?
- When stressed, do you shut down, say “yes” when you really mean “no”, or lash out? What about your spouse?
- Do you both have a clear understanding of your finances and realistic financial goals?
- Are you both involved and aware of your children’s concerns and needs?
- Are there complex financial holdings (restricted stocks, deferred compensation, business interests, foreign income sources, etc.)?
Every divorce is different. Attend a divorce workshop, outline your goals and concerns, interview different lawyers, and decide which universe is most important to you; it can mean the difference between a good outcome and your worst fears.
About the author
Diana L. Martinez is a Faculty Trainer with the International Academy of Collaborative Professionals, and an experienced collaborative divorce lawyer handling cases throughout California, with offices in Corona, Riverside, Newport Beach and San Diego.