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"Irreconcilable Differences" are the grounds upon which most dissolutions are granted in California, and if you decide to end your marriage, it is the legal basis upon which your dissolution will most likely be granted. In practical terms it means that you and/or your spouse cannot continue. Once one of you makes a threshold case that irreconcilable differences exist, the court is obligated to grant a dissolution, even if other party does not want it.
The reasons for divorce are myriad. In my experience as a family lawyer and mediator I have found it to be the rare client who decides to divorce without carefully weighing the decision and considering the practical ramifications for all family members. While any possibility of reconciliation should be fully explored, once you have decided your marriage is over, immediate decisions must be made about how to handle the legal aspect of terminating your relationship. Your decision as to approach should be made with care, as it will impact important property, support and custody rights, and will also set the tone and precedent for dealing with future co-parenting or joint property or business management issues.
There are circumstances that lend themselves fairly well to the remedy of legal self-help (doing it yourself), particularly those circumstances that would qualify your marriage for what is known as a "Summary Dissolution" under California Civil Code §§4550 et seq. You may obtain a summary dissolution only if you have been married less than five years, have no children, own no real estate, and can agree to file a joint petition asking the court for a dissolution. All the forms needed to file a summary proceeding are available from your county clerk’s office, and there are a number of legal self-help books you can purchase to help you with the forms.
If your divorce action will involve child custody, property, or support issues, however, you might be ill-advised to attempt to do your own divorce without professional assistance. While all of us have ideas about what is "fair," you may not feel sufficiently fluent in community property, which will often include real estate, pension and profit sharing plans and other employment benefits, not to mention planning to minimize the tax consequences of your arrangements.
Fortunately, the well-known, and usually expensive, "contested divorce" is not the only option for those requiring professional assistance with their dissolution. Couples who are in general agreement on property, support, and custody issues might consider having one spouse retain an attorney to file and draft the marital settlement agreement. The proposed marital settlement agreement can then be reviewed by the other spouse and his or her attorney.
With the assistance and guidance of the reviewing attorney, the other spouse can decide whether the proposed marital agreement is acceptable or whether modifications to the agreement should be made before it is signed.
Divorcing couples may also wish to consider mediation, a relatively new method of terminating marital relationships and arriving at agreements resolving custody, property and support issues. The process of mediation involves direct negotiation between the parties in the presence of a third party, the mediator. The mediator’s role is that of impartial facilitator, intended to guide the process, encourage the parties’ collaboration, and assist both parties in getting through impasses they might have on particular issues.
If you choose to mediate your divorce, you can anticipate meeting with your spouse in the mediator’s office for a limited number of one- to two-hour sessions during which you will work out the parameters of a final agreement. As a general rule, the mediator will then draft the marital settlement agreement which will be part of your divorce decree.
While the process of mediation has the distinct advantage of being a cost-effective method which allows the parties involved to chart their own destinies with a certain level of professional guidance, as opposed to control, it also presents a number of risks which should be carefully evaluated. The most obvious risk involves the present lack of licensing. No formal training or professional license is required to be a mediator. Thus, interested parties should exercise caution in choosing a family mediator.
Another significant risk to be considered involves the lack of what is known as "discovery" in mediated divorces. Discovery is a method used by attorneys to find out which property is "community" property, subject to division by the court; which property is "separate" property, to be awarded to its owner; and what the parties’ needs and abilities are with regard to establishing appropriate child and/or spousal support amounts. Discovery is accomplished in various ways which give the attorney access to information necessary to negotiate a settlement agreement or take the matter to trial.
Mediation assumes a voluntary and complete disclosure of all facts necessary to allow each party to make fully informed decisions on all issues. It is conceivable that by failing to make full disclosure a conniving client could attempt, and perhaps succeed, at defrauding the other spouse of money, property, support or other legal entitlement. While there are legal grounds for setting aside agreements from fraud or duress, prevention probably presents the better approach, and it is up to you to assess the risk in your own case before relying on your spouse’s promise to make full and complete disclosure.
It has been my experience that clients having difficulty assessing risks or deciding which might be appropriate to their situation are often helped by consulting with an attorney on a one-time basis. Consultations are usually charged at the attorney’s hourly rate, sometimes with a minimum one-hour charge. Any questions about fees should be answered before the appointment is made, and you should indicate to the attorney that the purpose of your consultation is to consider all the options to you with regard to divorce. Becoming fully informed of your choices at the outset will allow you to plot the appropriate course of action with regard to your divorce and set the tone for your new family relationships. The greater the level of cooperation engendered during the divorce proceeding, the easier the transition will be for all family members concerned.
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