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Is mediation best for divorcing same-sex couples?

If you and your same-sex California spouse decide to end your relationship and seek a divorce, you should consider mediation as the way to do it. Not only does mediation represent a much more amicable way to divorce, it also may offer you far more flexibility.

GoogleScholar shows the transcript of the landmark 2015 U.S. Supreme Court decision in Obergefell v. Hodges, the case that established the right of same-sex couples to marry. However, if you read this decision, you will discover that the Court issued no mandate to the states to update their divorce laws so as to accommodate same-sex couples. Thus, obtaining a mediated divorce may be your only real option since it represents a non-judicial proceeding.

How mediation works

Unlike in a traditional litigated divorce, neither you nor your spouse need hire an attorney in a mediated divorce, although you can if you want to. Instead, the two of you hire an agreed-upon mediator. (S)he represents neither one of you and instead acts as your facilitator during the series of three-way meetings you hold. In these meetings, you and your spouse negotiate with each other to resolve your own issues and disputes.

Keep in mind that your mediator will provide you and your spouse with a nonthreatening environment in which to negotiate. Nor will (s)he allow either of you to overpower or disrespect the other.

Final agreements

Ultimately, you and your spouse should reach agreement on all of the following:

  • How you will handle child custody and parenting time
  • How you will handle child support
  • If one of you will receive spousal support, and if so, how much
  • How you will divide your marital property; i.e., your community property, that California law requires you to split equally

The beauty of mediation for same-sex couples is that everything takes place out of court. Even though a judge will ultimately have to sign off on your various negotiated agreements, (s)he does not need to be bound by either California statutes or case law in order to do it. Consequently, assuming none of your agreements negatively impacts either of you, the judge likely will grant your divorce without either of you ever having to go to court yourselves.

This is general educational information and not intended to provide legal advice.