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Is it better to divide assets in mediation or divorce?

No matter what your income level may be, you likely care a great deal about how your assets - as well as your debts - will be divided when it comes time to dissolve your marriage. This is understandable. After all, no one wants to see a divorce settlement that does not provide a fair split of community property and debts.

Because California law provides two ways to dissolve a marriage - either through traditional divorce proceedings or mediation - one may wonder: Which option results in the best division of assets? To answer this question, you need to consider how each process handles property division.

Mediation and property division

One of the biggest benefits of mediation is that it offers divorcing couples a chance to handle their divorce in a less adversarial environment. The couple sits down with a neutral mediator who facilitates discussions between the two spouses who may also have a consulting attorney to assist them when necessary.

Though mediators do not make decisions for the couple, they can help couples work through their issues thereby resolving disputes outside of the courtroom. When dividing assets, mediators can help couples:

  • Make lists of separate and community property assets
  • Make lists of separate and community property debts
  • Identity any complex assets that may need additional time to negotiate
  • Come to an agreement about how assets and liabilities can be divided fairly
  • Involve experts as needed whether for valuation or tax issues
  • Inform them of the divorce process and legal options

Traditional divorce and property division

While traditional divorce proceedings may start out the same way mediation does in the sense that couples are encouraged to make a list of all separate and community property assets and debts, spouses in traditional divorce do so without the help of a mediator. Spouses can either try to do this on their own or with help from an attorney.

While it's possible for spouses to reach an amicable agreement about how to divide community property in traditional divorce, called an uncontested divorce, this doesn't always happen. Without a neutral mediator to guide spouses through disputes, spouses may be more adversarial about dividing assets and debts. As such, it's not uncommon for property division to be a catalyst in a number of contested divorces. Often, the adversarial process escalates the emotions and the conflicts between spouses.

When a divorce becomes contested in California, spouses will have to go to trial where a judge, as permitted by the California Family Code §2550, will make the division about how to divide community property equally between spouses.

Which decision is best for you?

So which option is best? This depends heavily on how much control you want over the property division process. Spouses who feel they know their own situation better than a judge does may see mediation as the better option while spouses who are having difficulty agreeing on how to divide community property may prefer the intervention of a judge.

The mediator assists both parties in becoming knowledgeable so that each is able to understand and participate in the decision-making process. 

Ultimately, the decision is up to you, but it's best to make that decision after discussing matters with a lawyer. A lawyer well-versed in family law can outline your rights and point out options that are in your best interests. If the lawyer acts as a neutral mediator, he or she can also guide you through mediation proceedings while also keeping the law in mind.

There is nothing wrong with exploring the option of mediation before making a decision. There is also the option of a collaborative divorce -- but that is the subject of a blog another day. 

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