Mediation clients need not follow California law

Enacted in 1970, frequently amended and supplemented by many hundreds of appellate decisions, California's no-fault divorce law governs virtually every aspect of marital dissolutions. In Court, judges have taken an oath to apply that law to the facts of the cases before them. Judges who fail to follow the law are routinely reversed by the appellate courts.

But there are situations in which the parties recognize that following California law would serve neither party's best interests. Under those circumstances, mediation facilitates the ability of the parties to accomplish shared goals with deals that would never be ordered by a judge. While this is also possible when the parties are represented by separate counsel, that process is inherently adversarial, and attorneys typically tend to debate the issues based on their predictions of how illustrate the point.

By statute, the Court's jurisdiction over child support for a child who is not incapacitated terminates when that child turns 18 and graduates from high school or turns 19, whichever occurs first. The Court cannot compel parents to pay all or part of the cost for an adult child's college education. Jones v. Jones (1986) 179 Cal. App.3d 1011, 1017.

Many divorcing parents agree that they will contribute equally to the cost of their children's college educations, and incorporate that agreement into their Judgment. Any such agreement constitutes an enforceable child support order. Family Code § 3587. Thus, a stipulated child support order that the Court could not impose over either party's objection ensures that both parents will contribute equally to the cost of their children's college educations.

Under ordinary circumstances, a judge has no power to defer the sale of the parties' residence, which is often their single most valuable community asset. The deferred sale of home orders authorized by Section 3800 et seq. of the Family Code, which require judges to determine that a deferred sale is economically feasible, and then to weigh the evidence on ten separate statutory factors in exercising their discretion to grant or deny the order, is a cumbersome procedure. As a practical matter, the sale of the parties' residence is rarely deferred. Either one party can buy the other party out for cash (based on the current fair market value of the property minus the principal balance of the mortgage with no deductions for fix-up expenses, broker commissions, closing costs or capital gains taxes) or the property will be ordered sold to a third party.

When it is financially feasible, it is commonplace for the parties to negotiate a "purchase" of one party's interest by the other party for an amount that is lower than the legally mandated purchase price, but higher than the amount the selling party would receive if the property was sold on the open market. The party buying the residence gets to keep it for less than the Court would order him or her to pay, although he or she may someday have to pay 100% of the fix-up expenses, brokers commissions, closing costs and capital gains taxes; the selling party ends up with more money than he or she would otherwise have received.

Alternatively, during times when interest rates are high and house prices are declining, the parties sometimes agree that one party will continue to occupy the former family residence for some period of time based on the hope that the market will recover, and that both parties will benefit from appreciation in the value of the property when it is finally sold.

Binding appellate opinions prohibit trial judges from using the Dissomaster computer program to determine the amount of permanent spousal support. Marriage of Burlini (1983) 143 Cal.App.3d 65, 69; Marriage of Zywiciel (2000) 83 Cal.App.4th 1078, 1081-82. Instead, trial judges must consider and weigh the statutory factors enumerated in section 4320 of the Family Code, which include the marital standard of living, each party's earning capacity, the ability of the supporting party to pay spousal support, each party's needs, the parties' assets and debts, and any other factors that the Court "determines are just and equitable." Marriage of Cheriton (2001) 92 Cal.App.4th 269, 302. Failure to do so constitutes reversible error, even though determining the weight to be accorded each statutory factor is "extraordinarily difficult." Marriage of Smith (1990) 225 Cal.App.3d 469, 479.

In the vast majority of mediated cases, the parties decline to debate the weight to be given the statutory factors, and use the Dissomaster computer program to determine the amount of permanent spousal support, often by discounting the guideline amount 10-20% because "permanent spousal support orders will usually be lower than temporary orders," Marriage of Schulze (1997) 60 Cal. App.4th 519, 525, and temporary orders are routinely determined by using the Dissomaster.

In the first of these examples, parties who would have paid for their children's college educations if they had remained married put aside their differences and agree as parents to jointly finance their children's college educations. In the second, they agree either to defer the sale of the family residence in the hope that both parties will benefit financially or to consider fix-up expenses, broker commissions, closing costs and capital gains taxes (at least to a certain extent) in negotiating a buy-out. In the third example, the parties agree to replace a cumbersome subjective analysis with an objective shortcut

that enables them to approximate the result of letting a judge decide.

In all three instances, the parties and their children are better off than if the parties had followed California law.