Mediation is a way by which two people can work out a disagreement with the assistance of a third party to help them reach agreements. Mediation is best contrasted with litigation in the court room where the decision is entirely in the hands of a judge who doesn’t usually consider the emotions of the parties involved.
In a recent case, In Re Marriage of Woolsey, Anna and Clark decided to mediate their divorce at a church with the help of a minister and prayer. Without a lawyer involved they didn’t follow the rules set out in the Family Code perfectly. The parties did agree that they adequately disclosed to each other all the assets involved in the divorce. When Anna requested enforcement of the agreement at the court, Clark objected on a number of grounds. Most importantly for the purposes of this article, he claimed that the financial disclosures made did not follow the family code completely.
In an ordinary divorce filed with the court, parties are required to exchange preliminary declarations of disclosure and then final declarations of disclosure. The Family Code requires each party to list all the assets and debts involved and each party’s income and expenses. This information must also include supporting documentation, including tax returns. This information is sometimes incomplete at the preliminary stage so the expectation is that by the time a final disclosure is exchanged, all the information will be available.
Before requesting enforcement of the agreement in court, both parties exchanged preliminary declarations of disclosures and Anna served Clark with her final declaration of disclosure. Clark’s objection is a bit silly considering he was the one who didn’t provide Anna with his final declaration of disclosure. The court agreed, saying that Clark can’t use his failure to comply with the statutory requirements as a basis for challenging the judgment.
More importantly though, the Court recognized that mediations in general are not required to comply with the specific disclosure requirements typically expected of a litigated divorce.
“Private mediation, like nonjudicial arbitration, offers an alternate approach to resolve disputed issues arising from a marital dissolution. Requiring technical compliance with disclosure rules designed for adversarial litigation would undermine the strong public policy of allowing parties to choose speedy and less costly avenues for resolving their disputes. Parties who agree to settle their dispute by private mediation may also agree to make financial disclosures that do not meet the technical procedural requirements of sections 2104 and 2105.”
I mention the declarations of disclosure also as a way to explain just how detailed things can get in a divorce. Even in a simple case where you are filing for divorce and not expecting your spouse to respond, you are still expected to send preliminary disclosures to your spouse before requesting a judgment against them. Full disclosure is important in order to determine how to split the property and how much if any spousal support or child support should be paid.
If you are thinking about getting divorced in San Diego and want to learn more about the process, it is best to contact an attorney. Call Paul D. McGuire at the Law Office of Paul D. McGuire today for a free consultation at 858-242-5667.