On Mediation


April 29, 2004


Divorce mediation: More choices for Mary and Fred

Mediation is a less-expensive, less-adversarial and more private method of getting divorced, and it provides people more choices than a judge has in court. The case of Mary and Fred illustrates these differences.

The house: When Mary and Fred first met their divorce mediator, they were still living together. After two mediation sessions, they decided that Fred would move out and that Mary would obtain a "cash-out" refinance of the house to get the funds to pay his share of the equity. By working together to develop a Marital Settlement Agreement, they were able to show the refinance lender that Mary would be receiving spousal support and child support in addition to her own monthly income, to be able to afford the increased mortgage.

If they fought over the house in court, the judge would likely order it sold and the proceeds divided. In addition, the costs of attorneys fees for the court fight are often so high that the house is sold to pay them.

Separate property: During the marriage, Fred received an inheritance of $60,000. Under California laws, property received as a gift or inheritance to one of the parties is considered separate property, regardless of when it is received. In addition, Fred contributed $30,000 from his parents toward the down payment when he and Mary bought their house in 1992. Under the law, he has a right to be reimbursed for all of that contribution.

In mediation, Mary and Fred discussed what to do about the down payment. Mary was not sure that she could afford to keep the house if she had to pay Fred back the full down payment. Yet Fred wanted her and the children to be able to stay in the house. The mediator pointed out that if Mary could refinance they would save the costs of selling the house, usually 6 percent to 8 percent of the sale price. Ultimately, Fred decided to forego the reimbursement for the down payment.

If they were fighting in court, the judge would have ordered Mary to reimburse Fred for his separate property down payment.

Parenting plan: Mary wanted the children to reside primarily with her for stability during the school weeks, yet Fred demanded a 50-50 shared schedule. After two mediation sessions, they agreed to alternate weekends.

They also decided that Fred would have the children after school most days, because his work schedule allowed it. Because of her long commute -- Mary got home from work at 6 p.m. -- they agreed that the children would spend the nights with Mary.

If they disputed custody at court, they would have a schedule imposed by the judge based on recommendations from a Family Court Services counselor after only one 1 1/2 hour session with the parents.

Child support: The Legislature has developed mandatory guidelines for the courts. A judge is bound by these guidelines, while in mediation the parties can deviate from them as long as they are informed of their rights. One of the factors is the percent of time the children spend with each parent.

In mediation, Mary and Fred decided to deviate from the state guidelines. Even though Mary's parenting time would be considered approximately 70 percent, because she had the weekday overnights, they agreed to use the guidelines based on 50-50. As Fred's income was slightly higher, he agreed to pay Mary $300 per month.

Spousal support: Their marriage lasted just over 10 years, so it qualified as a marriage of "long duration" under California law. This meant that the court would retain jurisdiction over the issue of spousal support until either party died or the supported spouse remarried.

However, the difference between Mary's and Fred's incomes was not large, so that at most spousal support would have been about $150 per month paid to Mary. She wanted to be free of ties to Fred and felt optimistic about her future income. Therefore, they both agreed to waive spousal support after only three years.

By working together in divorce mediation, Mary and Fred were able to create a divorce agreement that fit their unique circumstances and saved them substantial costs.

Eddy is a mediator with the San Diego Mediation Center, and the author of "High Conflict Personalities: Understanding and Resolving Their Costly Disputes," available at www.edylaw.com. He can be reached at william.eddy@sddt.com.


April 29, 2004