Is It Better to Choose Litigation or Mediation for Property Division in California?
No matter how you slice it, divorce is one of the most stressful things you’ll ever endure.
And regardless of why or when your marriage ends, one of the most difficult things to deal with in a divorce is property division.
Here in California, where divorce law adheres to community property principles, the division of property can become even more emotionally charged and contentious.
Traditionally, couples have turned to litigation to resolve these disputes, but this method often exacerbates stress, makes things much more expensive, and prolongs the whole ordeal.
However, a growing number of divorcing couples are now choosing divorce mediation, as opposed to litigation, as it’s often a much better option for everyone involved, not least when it comes to property division.
This approach not only alleviates much of the emotional strain you feel during divorce litigation, but also offers a more cost-effective, efficient, and private means to negotiate the division of assets with your former spouse.
Still, many people who are getting divorced today are confused about whether they should choose litigation or mediation, so we want to provide some context and explain what’s unique about our mediation protocol in relation to property division.
So, if you and/or your spouse want a divorce, you’re worried about dividing your property, and you’re not sure whether to mediate or litigate, then keep reading to learn more.
The Challenges of Property Division in Traditional Divorce Litigation
Litigation has long been the standard route for resolving divorce disputes, including the division of property.
In this adversarial system, each spouse hires their own attorney to advocate for their interests, which often leads to entrenched positions and heightened conflicts.
This process can involve multiple stages, including filing legal pleadings, engaging in discovery, hiring experts, attending hearings, and possibly undergoing a trial.
Each phase can be fraught with tension and hostility, straining your family dynamics and finances, while complicating emotional recoveries.
However, you should keep in mind that despite the inherent challenges of litigation, divorce mediation isn’t always the right option, and there are some instances where mediation is not possible, and litigation is absolutely necessary.
But from our perspective, in most circumstances, mediation is going to provide the best outcome for everyone involved.
With that in mind, even though it’s sometimes necessary, litigation tends to be a less desirable option for divorcing couples, and here are some of the reasons why:
Financial and Emotional Costs
Litigation is notoriously expensive, and the legal fees, court costs, and cost of financial experts can drain your marital estate, sometimes consuming the very assets this process is meant to divide.
What’s more, the adversarial nature of litigation can also inflict significant emotional costs.
Long and drawn-out disputes exacerbate stress, anxiety, and bitterness, which can have an impact on all your family members, especially your children.
Privacy Concerns
Unlike mediation, litigation is a public process.
As such, court documents and proceedings from divorce litigation, which may contain sensitive personal and financial information, become part of the public record.
And for individuals who value privacy, particularly public figures or business owners, this public airing of private matters can be particularly distressing and damaging.
Rigidity and Loss of Control
In litigation, the final decisions are made by a judge who must apply the law to determine the outcome.
This can lead to results that feel impersonal or ill-suited to the unique needs and circumstances of your family.
For example, California’s strict community property laws, which dictate an equal division of marital assets, may not always result in an equitable division of property that considers the specific nuances of each case.
The Benefits of Mediation for Property Division
Mediation presents a compelling alternative to litigation, which is particularly appealing in the context of California’s community property laws.
This process involves a neutral third-party mediator (or mediators) who can facilitate calm and focused discussions and negotiations between you and your ex-spouse, helping you work together to reach a mutually acceptable agreement on the division of property.
With that in mind, below we’ve listed some of the benefits of divorce mediation, as it relates to property division:
Collaborative and Less Adversarial
Unlike litigation, mediation is inherently collaborative, as it encourages open communication and problem-solving, and protects full disclosure, which can help to reduce hostility and promote understanding.
In any case, what you discuss in mediation can never be used against you in court or disclosed.
This atmosphere can be particularly beneficial for preserving amicable relationships post-divorce, which is crucial for effective co-parenting, and makes ongoing interactions with your family more comfortable and enjoyable.
Empowerment and Flexibility
During mediation, you are not restricted by the Family Code and can consider more creative ways to divide your property that meet the unique needs of your family, as it empowers you and your former spouse to make your own decisions regarding the division of assets.
Instead of adhering strictly to the Family Code that a judge must use for litigation, you and your ex can consider your priorities, needs, and future plans, allowing you to come up with much more tailored and creative solutions.
This flexibility can result in agreements that are more satisfying and practical for you, your former spouse, and your children.
Efficiency and Reduced Stress
Mediation typically requires less time than litigation, not least because sessions can be scheduled at the convenience of both parties without having to wait for court dates.
In Sonoma County, for instance, hearings are scheduled many months out due to the impacted court calendars.
But when you choose mediation, instead of waiting around for a judge, you can spend that time focusing on your case and the most productive and efficient way to resolve it.
This expediency and efficiency allows you to not only reduce legal and associated costs, but also alleviate the emotional toll on your family, which can help everyone involved to more quickly come to terms with what’s happened and move on with their new lives.
Affordability
Typically, mediation is less costly than litigation because of full disclosure, focused meetings and the reduced need for extensive legal maneuvers, expert opinions, and court appearances.
These financial savings can be quite significant, allowing you to preserve more of your marital estate for you, your ex-spouse, and your children.
A Case for Divorce Mediation in California
Given the adversarial nature of litigation and the unique challenges of California’s community property laws, divorce mediation offers an attractive alternative for divorcing couples.
It alleviates the financial, emotional, and privacy concerns associated with traditional divorce proceedings and provides a more humane and constructive environment for resolving disputes.
Furthermore, mediation emphasizes the importance of self-determination and the need for customized solutions, as the parties involved are in control of the outcome.
And as families become more complex and diverse, the flexibility and respect for individual circumstances that mediation offers are becoming increasingly valuable.
In any case, the process of property division in California can significantly impact your future financial stability, tax consequences, personal well-being, and that of your family.
And while litigation has its place, particularly in cases involving hidden assets or abuse, for most divorcing couples, mediation stands out as a less painful, more respectful, and more effective method of resolving property division disputes.
It offers a pathway that not only respects the emotional and financial realities of divorce but also fosters a foundation for future collaboration and mutual respect.
What’s more, it’s been proven that parties that can reach their own agreements are less likely to end up in court in the future.
As such, mediation is not just an alternative to litigation, and in many cases, it’s the best choice for everyone involved.
Our Unique Approach to Property Division
If you choose to engage in mediation using our Compassionate Divorce protocol, you’ll have the freedom to explore any and all options available for property division, as long as they’re agreeable to both you and your former spouse.
We often offer our clients solutions they did not previously know were available, and once we understand your personal goals, we’ll brainstorm with you to create the most positive outcome possible.
Keeping in mind that every family is unique, this approach allows you to come up with creative solutions, which can deliver better results for you, your ex, and your family.
For instance, our knowledgeable staff will work with you to complete disclosures in a timely manner, and with as little conflict as possible, which can help you save a lot of money.
Our protocol also allows us to put a focus on keeping as much in the family as we can, as we strive to make the mediation process as quick and affordable as possible.
For example, if divorcing spouses own a home with a low interest rate and one party wants to buy out the other, but both parties are on the loan, we can work out an agreement that preserves the lower interest rate for a period while protecting both spouses.
However, the courts have very rigid guidelines, so they don’t typically allow for this level of creativity and collaboration.
On the other hand, our mediation process gives you greater control of how your divorce will play out by encouraging you to reach agreements that allow you and your ex to make your own mutually beneficial decisions based on your goals and financial best interests.
You and your former spouse can agree on an unequal division of community property and even address the character of property that was acquired before marriage or that of a separate asset that was sold and whose proceeds were then used to purchase community property.
This can be a very complicated process that we help to simplify, keeping your goals in mind.
People often spend thousands of dollars arguing over this sort of thing, which depletes the resources that are left for your family when the divorce is over, but we encourage our clients to take a different approach.
At the same time, we ensure our clients are given adequate information to make the right decision with a full understanding of the facts and California Law.
We also make a point of working with neutral appraisers when valuing property, which allows us to value and/or split up assets in the most economical fashion.
What’s more, if both spouses agree, we can use retirement assets to offset other assets and even work with forensic CPAs to value businesses, tax effect assets for division, determine the marital standard of living for spousal support, and more.
Our clients work with one qualified team of professionals, rather than each party retaining their own experts and fighting over their expert opinions, which can be very expensive.
Fortunately, we enjoy long-standing relationships with many reliable professionals who will ensure you have all the information you need to make good decisions during the mediation process.
In any case, it’s our job to ensure both you and your ex-spouse understand the extent, nature, values, and options you have related to property division and provide options you may not have considered to meet your respective goals and create a better future.
In doing so, we’ll find out what’s important to each of you, and what your goals are, and then provide options that will best meet your collective needs and objectives.
Unfortunately, this does not happen during traditional divorce litigation, where one judge has hundreds of cases they’re overseeing at any given time.
The courts are backlogged, and judges simply do not have the resources, time, or bandwidth to give every case this kind of attention.
As a result, litigants often wait for many months before the trial to have their property divided.
Judges are also limited in the decisions they can make, as they must follow the Family Code, which can oftentimes result in outcomes that nobody wants.
And let’s face it – a stranger in a black robe cannot know what is best for your family, no matter how qualified they might be.
With that in mind, why not try taking a different approach?
Looking for a less adversarial and more affordable divorce?
If you’d like to learn more about the Compassionate Divorce protocol, you can read our article, Breaking Up Amicably: the Benefits of Compassionate Divorce or contact us for more information.
