Do I Need a Lawyer in a California Divorce If We’re Just Going to Mediation?

By Jeremy Masys

If you’re in the divorce process in California, thinking about divorce, or if it seems like your spouse is considering divorce, then there is a good chance you are considering mediation, even if you are not exactly sure what divorce mediation is.

Why? There are many reasons mediation is beneficial, but here a few of the basics:

  • Spending several hours with a mediator to sort out your differences and work towards a settlement of your issues in your divorce can save you many thousands of dollars in legal fees that could otherwise go into writing up combative court filings, appearing in contentious court hearings, and so on.
  • You can sort these issues out with your spouse and a mediator trained in the art of fostering agreement in a private room, without objecting lawyers, an intimidating judge watching over, and the peanut gallery of several dozen randos in the courtroom waiting for their own turn in the hot seat (again, all while your legal bill is going up hundreds of dollars per hour, even if your lawyer is just sitting there during another 11 or so cases called that morning).
  • You and your spouse can get the divorce process moving at an infinitely faster pace than the litigation process of waiting weeks and months between every hearing, while your financial and relational future hangs in the balance (and while a new bill from your attorney shows up every month).
  • The two of you can hopefully resolve your issues without being at each other’s throats any more than you might already be – which can often be an unfortunate and understandable (yet not at all necessary) byproduct of the litigation process – and this is a huge positive when you need to go on raising children together, or, at the very least, salvaging whatever friendship or at least semi-affirming vibes might still exist, even if the lifetime partnership plan didn’t go exactly as planned.

So if mediation is so great, why doesn’t everyone do it? Well, several reasons.

  • Not everyone is honest or committed to playing fair in the divorce process, for starters, meaning the more sharp-edged tools of litigation are sometimes necessary.
  • Sadly, emotions can go haywire in divorce, making compromise a challenge. While you don’t have to even like each other to have an effective mediation, it is helpful to all parties involved to have something other than the unending misery of your soon-to-be-ex as a primary goal in order to make mediation work.
  • Lawyers tend to make a lot more money when spouses are willing to pour tens of thousands into their law firm’s coffers to conduct an all-out courtroom battle as opposed to settling things quickly in mediation, so not all lawyers will make meditation a priority when the possibility of a $50,000 or $250,000 legal payday is an option.

You can’t control what your spouse does (which I’m guessing you’ve learned by now if you’re reading this), but you can certainly explore the option of mediation and offer it up to your spouse as a mutually beneficial option for getting out of this thing with minimal bloodletting.

Which leads to the question – do you even need a lawyer if you’re going to do mediation?

My stock answer to any “do I need a lawyer” question is you never necessarily “need” a lawyer. You can represent yourself in court in any situation, short of being declared too insane to do so. But, of course, your relative results from doing so may not be great.

And, because divorce is, for most people who go through it, one of the most (if not the most) financially significant experience of their lives, not to mention the impact it will have on relations with your children, the idea of mediating a divorce without ever speaking to an attorney who can advise you personally at least once seems highly inadvisable. And potentially catastrophic.

It’s Hard to Mediate Well If You Don’t Know What Your Rights Are

A quick rundown on what exactly mediation is: in mediation, you and your spouse will attempt to create a Marital Settlement Agreement (MSA) which will address and resolve all of the issues in your divorce: spousal support (alimony), division of all property and debts, child custody and visitation, and child support.

You and your spouse can create this MSA on your own, which means you wouldn’t even need mediation, or you can go to mediation in which a mediator will use strategies to help you reach that MSA. The mediator won’t make the decisions for you, but might offer potential compromises or encourage the two of you to explore new options in the hopes of reaching an agreement.

But what you mediator will most likely not do is tell you what your rights are under the law. If you actually know what your rights are to, for example, spousal support, you are in a much better position to negotiate with your spouse and/or agree to a compromise offered by the mediator. If the mediator suggests an option by which you receive $1,000/month in spousal support for two years, but you had no idea you would be more likely entitled to something in the range of $2,500/month for five years, then mediation without a lawyer might not really be in your best interest.

Similarly, if your spouse is demanding $3,000/month in spousal support for three years, but you are not sure if he or she is entitled to anything (or even if they should be paying you), then you’re not going to be feeling great about making big decisions in the mediation process on your own.

Don’t Expect Your Mediator to Explain (Or Even Know) the Law

Last summer, I took a course at an LA community college on mediation. It met every Saturday for about five hours for four weeks. It cost less than $300 total. One other person in the class was a lawyer, but no one else had any legal training. We talked about some interesting strategies for helping people reach an agreement, watched some cheesy training videos from the 1990s, did some role playing exercises, and never once discussed how the law would actually fit into any given situation, or even what you might do to figure out what the law might be.

At the end, we were given certificates indicating that we were now mediators in California.

We didn’t even need the certificates. There is no licensing system for mediators in California. You want to be a mediator in California? Congrats, you’re now a mediator. Now go to Kinkos and get some business cards and fire up the Squarespace to create your new mediation services website.

I’m not joking. Certainly, there are incredible mediators, and specifically many wonderful mediators in the family law space who know more about family law than just about anyone else out there (and as a result may be wildly out of your price range). But there are also mediators out there who don’t have the faintest idea of what the law is regarding your rights to property, support, custody, and so on.

And, no matter what your mediator may or may not about the law, remember that they are not necessarily there to tell you what those rights are, or to even explain the basics of the law to you. Which, again, makes it tough to reach an agreement you can feel good about, when you don’t know what result you would get in court with a judge actually applying the law to your situation.

Mediators Are Seeking Agreement (But Not Necessarily Your Best Interests)

Why don’t mediators explain the law? As I was told in the mediation class I took, the job of the mediator is not to reach a fair result, it’s really just to reach a result. I don’t know that all mediators work that way, but the ethos of that course was that the one and only goal of a mediator is for the two parties to reach an agreement. Whether or not it is a good agreement for the respective parties was beside the point.

Certainly, not all mediators seek after an agreement at any cost, no matter how much it deprives one party of his or her rights and/or creates a crushing yet unnecessary result. But it is generally the case that a mediator is there to get you and your spouse to sign on the dotted line of something, not to reach best possible result under the law for you.

Mediating Is Just One Step (If That) of the California Divorce Process

At this point, I may need to remind you that, despite all the warnings given above, mediation is often an extremely beneficial alternative to litigation as a way of ending your marriage. Just as Winston Churchill declared democracy to be “the worst form of government, except for all the others,” for many people mediation is the worst way of resolving your California divorce matter, except for all the others.

But, even in the best possible mediation situation, understand that you are not going to walk into a mediation and walk out divorced. Hopefully, you can avoid going to a court hearing, but you will still need to complete and file a number of state legal forms, as well as serve financial disclosures on your spouse, before your divorce is final. And the information in the court filings and financial disclosures of yours and your spouses will likely serve as the basis for any well-mediated settlement. And that’s assuming that those documents have been filled out accurately and comprehensively, which can be assuming a lot.

And while we’re assuming things, this is also assuming the mediation process actually results in you and your spouse reaching a resolution of all of the issues in your divorce. Which I hope it does. But that is also a big assumption, to say the least.

All of which is to say that, while mediation can accomplish a lot in getting you to the finish line of a fair and finalized divorce, there may be a number of other aspects of your divorce for which you will need legal assistance.

Even Just One Consultation With an Attorney Can Vastly Improve Your Chances for Beneficial Mediation

Talking to an attorney about an upcoming mediation or the possibility of mediation does not mean you need to hire that attorney to represent you through your entire divorce. You can speak to an attorney for as little or as much as you’d like about the mediation without having that attorney be the attorney of record in your divorce.

Even just a single consultation with an attorney can help you understand:

  • What potential range of results you could expect in court regarding your rights and obligations with respect to community property, spousal support, child support, custody/visitation, all with the intention of properly adjusting your expectations and goals for mediation
  • What strategies you can use before, during, and after the mediation to get the results you desire
  • What procedural aspects will be involved with turning the mediation into a Marital Settlement Agreement and finalized divorce
  • Any other issues regarding the mediation process you want to understand

I provide by-the-hour consultation in addition to full and limited-scope representation in California family law matters. Contact my office to discuss your options and/or schedule a consultation.

When Is It Time to Reach Out to a Divorce Attorney?

By Jeremy Masys

There are few, if indeed any, more stomach-churning communications in life than making that first phone call or sending that first email to a divorce attorney, especially one you don’t know personally. Indeed, it is not uncommon in my practice to hear from people whose spouse moved out years ago – or in some cases, where both spouses continue to live in different rooms in the same residence long after the marital commitment has ended – but who are only now speaking to a family law attorney for the first time.

Why do some wait so long to contact a divorce attorney? Certainly every situation is unique, but many people consciously or subconsciously feel that speaking to an attorney about their situation is waving the white flag of defeat over their marriage. Or that speaking to an attorney about a potential divorce will “make it real.” Others worry there will be no going back to the hope of a functional marriage after speaking to a divorce lawyer, or that consulting with an attorney will make their spouse angry.

None of these are exactly true. Okay, except maybe for that last one about making your spouse angry. But two quick things on that one: 1) there is no reason your spouse has to know about your own confidential communication with your own attorney about the steps you may need to take to protect your own future, finances, and rights; and 2) even if he or she does know, his or her decision to become angry (as opposed to, say, addressing the issues in the marriage) may be the least of your concerns, and, in any case, should not take precedence over the obligation you owe to yourself to make sure you can build a stable and secure future should the marriage indeed come to an end (more on this below…).

Does this mean be a jerk with no concern for the emotional well-being of the person with whom you hitherto shared a life and what you thought was a future? Not at all, but it does mean if there was ever a time to take some relatively simple steps to understand how state law will affect your rights and obligations with regard to spousal support (aka alimony), child support, child custody, visitation, splitting up property, and any other related family law issues – and what steps, timeline, and financial costs may be involved with obtaining a potential divorce – even if it perhaps means making an unhappy situation a bit more contentious, that time is when you are seriously considering divorce and/or married to a spouse who is seriously considering divorce.

Divorce Consultations Are Generally About Analysis and Understanding, Not Declaring War

When you have an initial consultation with a reasonable, thoughtful, and strategic divorce attorney (and by that I mean not an attorney who sees you as an emotionally vulnerable mark to be financially drained via creating unnecessary fighting, litigation, and delay, all generally at your great expense – yes these lawyers still do exist, and are to be avoided at all costs…), the focus will be on understanding your specific situation and the attorney explaining to you:

  • how the law might impact your situation, in terms of both financial rights and obligations as well as relationships with your children;
  • what steps will be necessary to achieve your goals, including the avoidance of potential legal pitfalls you may or may not be aware of; and
  • what your various options and approaches are for achieving those goals, e.g. beginning an amicable negotiation between you and your spouse with no lawyers directly involved, or, in other cases, planning an involved legal strategy that results in your spouse being surprised by a process server handing them a very thick envelope.

In any case, the first consultation is, in most cases, not about filling out and filing legal papers from which there is no going back. (Although there be emergency situations involving domestic violence, theft, child abduction, etc. that may indeed require such actions.) A quality lawyer will instead want to have a friendly, relaxed, pressure-free conversation about the topics in the above bullet points, all for the purpose of providing you with information and support in what can be done on your behalf.

Whether you want to have a second or third consultation or indeed go ahead with filing for divorce (which even then won’t be final for at least six months in California, and you and your spouse always have the opportunity to reconcile and withdraw the action prior to finalization) is entirely up to you.

I’ve had numerous consultations with both men and women regarding potential divorce scenarios who ended up reconciling with their spouses, determined more than ever to make it work. Less work for me, obviously, but a seemingly positive outcome for them (I honestly don’t know whether it’s positive or not, and it’s certainly not a lawyer’s job to know that). But reconciliation is often not in the cards, and the more information you have early in the process, the better it is for planning for the best outcome possible and avoiding unnecessary grief and expense that can come as a consequence of willful, if well-intentioned, ignorance and delay.

At any rate, I or any other attorney am not there to tell you whether to get divorced or to give it one more try, but instead to give you realistic outcomes, options, and strategies should that scenario come to pass, whether by you making the decision to file or your spouse making that move.

What You Don’t Know About Divorce Law Can Hurt You. Badly. For a Very Long Time.

When two people finally have the “it’s over” conversation, there’s usually not the pots-and-pans-flying, wedding-ring-tossed-at-the-other’s-feet theatrics of movies and TV. Instead it’s often an uncinematic somber moment of words finally being spoken – after months or years of those words going unspoken – between two people that for years genuinely wanted and worked to build a life together, but, for one or thousand reasons or another, that didn’t work out as planned. Which can be emotionally overwhelming, to say the least.

In that moment, some combination of the phrase “no lawyers” is often spoken. It might be said to cut the tension, to put a salve on the emotional bleeding, or to save costs at the same time one self-supporting financial unit is severing into two. But it might also be said to cut one person off from understanding just what their legal rights are in the divorce.

And even if the suggestion does come from a genuinely positive (albeit ignorant) intention, things can change quickly when the emotional relief of finally “moving on” turns into the harsh reality of financial hardship and confusion of living on one’s own, not to mention the emotional hangover of resentment and anger related to the end of the relationship that can begin to throb ever more brutishly when the haze of the breakup wears off and the world can start to seem like a cold place where all bets are off.

While one spouse may be dutifully going along with the “no lawyers” commitment for months, the other spouse may be talking to a lawyer on their own (and not necessarily the reasonable, ethical, let’s-work-this-thing-out kind of lawyer), and making all kinds of financial and legal decisions, proper and otherwise, without your knowledge and to your great long-term detriment.

You can certainly speak with an attorney for the first time (or the tenth time) at any point in the divorce process up until final judgment (and even afterwards in some cases), but waiting to understand what your rights and obligations are – not to mention what steps you can begin taking now to protect your assets, legal rights, and family relations – can cause damage to your own interests that may get harder and harder, if not impossible, to remedy the longer you wait.

And understand this, divorce is often not a singular event where you just walk away – you’re not SO’s, you’re spouses. There are a lot more ongoing obligations and restrictions that come with ending a marriage than many people realize. You could be paying spousal support (or losing your ability to receive it) for years and perhaps decades. Your relationship with your children may be negatively impaired by a court order until they graduate high school.

Point is, you could be living with the long-term consequences of not seeking out legal advice and potential representation for a long, long time after your short-term reasons for not speaking to an attorney – i.e. because a person who will most likely dramatically fade from your day-to-day life said “no lawyers” during an extremely emotionally vulnerable moment – have disappeared into the past.

You’re Going to Be On Your Own Now, So Start Taking Care of Yourself Now

Even in the not-great marriages that end in divorce, there are still often a lot of good things that get taken for granted until they’re gone. You had a friend, a teammate, a partner in the you-and-me-against the world story of every marriage, even if the world might have won this time. Basically, you had someone watching your back.

Now, you’re most likely going to be in charge of watching your own back. Which you might get on some level during the beginning of the end, but which you really won’t truly understand until it’s just you with the bills, the taxes, the grocery shopping, the insurance forms, the cleaning, the dinner party, the broken garbage disposal, the TSA line on your Christmas trip back to Texas, and the dog that wasn’t even your idea.

This can be liberating in many ways, and that is genuinely something to be celebrated, but transitioning from a two-person team to just you can be pretty crappy in a lot of other ways. If it’s not you that’s taking responsibility for doing something, it’s not getting done. And you might even know what to do much less how to do it.

But you’re going to learn. Not just the practical what-to’s and how-to’s, but the general mindset that you and you alone are in charge of taking care of yourself for the next while, and that means doing what you need to do for yourself even when there’s not someone reminding or asking, much less nagging, you to do so.

One of Dr. Jordan Peterson’s “12 Rules of Life” from his bestselling 2018 book is, “Treat yourself like someone you are responsible for helping.” Whatever you think of him, that one’s a tough rule to argue against. And yet one we rarely actually follow. He makes the point that statistics tell us we’re more likely to give our dogs their proper medication than we are to take the medication we ourselves need. And a dog won’t be happy if its owner is incapacitated by his or her lack of self-care.

If you had a friend ending a marriage where there were significant finances and family relations at stake, would you advise them that, whatever they do, they should avoid taking the opportunity to learn about their rights and obligations under the law from a skilled professional? I hope you wouldn’t, and I hope you would treat yourself with at least the same level of care and concern.

So, Wait, When Is It Actually Time to Reach Out to a Divorce Attorney?

You might have missed the answer to the question posed by this post about 1400 words back or so. Because it’s a pretty short answer. Once again, the answer is:

  1. When you are seriously considering a divorce
  2. When you have reason to believe that your partner is seriously considering a divorce

It’s that simple, even if everything else in your life at this moment feels as far from simple as possible.

At the risk of sounding like cheesy lawyer marketing, you don’t have to do this on your own. You really don’t. No matter what anyone else might say or think about it. Let them say or think what they want. And certainly don’t feel like you have to let them know about everything you do, i.e. consulting with an attorney. Instead, focus on getting done for yourself what needs to be done. And you’ll learn that doing that often means asking for help, even when it feels scary and hard to ask.

There is, or course, the issue of money. A basic downside of a consultation with a divorce attorney is the cost. I provide by-the-hour consultation in addition to full and limited-scope representation in California family law matters. Whether you are seeking a one-time consultation or immediate representation, in our first session I’ll ask questions, you’ll give answers, we’ll talk about the law, and we’ll talk about your options. What you do after the consultation will be entirely up to you.

(On the topic of cost – and this is certainly the subject of another blog post – be highly suspect of “free” or very low-cost consultations. And don’t be surprised if it turns out to be a mostly substance-free sales pitch for you to hire that lawyer to file for divorce ASAP and rack up some mighty high bills in a drawn-out, needlessly complex legal battle.)

You may be one of the lucky couples who can mostly resolve all the issues of their marriage and navigate the family law courts to achieve that result without significant help from attorneys. But even a one-time confidential consultation to help you understand the law and procedures and available resources as they apply to your specific situation can go a long way in helping to achieve that ideal outcome.

And, again, even if for some reason your spouse does become aware of and upset over the fact that you consulted with an attorney, well, that is the definition of “not your problem.” Ask yourself this: does their negative reaction to you taking steps to understand this highly consequential legal process you’re entering into come from a place of concern for you and your well-being? Highly doubtful.

Remember: responsibility and concern for you and your well-being both now and for years into the future is now a job held by one person. You. Carries out the duties of that job wisely. Starting now.

To schedule a consultation with me, visit the Contact page.