Harmonizing Divorce: A Guide to Smooth Asset Division Through Mediation

Asset division is one of the most complicated and time-consuming parts of any divorce. It can also frequently be an emotional flashpoint, as both parties worry about being robbed of what they feel is rightfully theirs. Although California has a 50/50 law, which means shared assets are always split as evenly as possible, it can still be very difficult to untangle the threads and find the most equitable solution. It can be especially frustrating to divide your assets if you’re going through traditional divorce litigation since the decisions are ultimately in the judge’s hands. This often results in one or both spouses feeling like they’ve been cheated.

Alternative divorce remedies like mediation can go a long way toward making the process smoother and relatively conflict-free. As a method of dispute resolution, mediation focuses on cooperation and strategic thinking, working toward a marital settlement agreement that both parties can feel comfortable with. Not only is this a fast and effective way to handle a divorce – the divorce mediation success rate is usually measured at about 80% – but it also helps take the sting of resentment out of the equation. You might be surprised by how easily you can divide your assets if you talk things through with your former spouse instead of arguing before a judge.

How Mediation Handles Asset Division

At the start, a mediator will run through the same early steps that a judge would. Beginning the asset division process involves collecting financial information and adding everything together to get a sense of what needs to be split up. In California, assets are usually classified into one of two categories: community property and separate property. Community property is anything that you or your spouse acquired during the course of your marriage, including income, investments, real estate, and everything else. Even if only one person was working and earning income during the marriage, that money is still considered to be community property. Debts accrued during the marriage also count as community property, even if they were just for one spouse. Separate property, meanwhile, is anything you acquire either before your marriage begins or after you and your spouse separate.

When you’re getting divorced, any asset division will focus on community property – that is, anything you or your spouse acquired during the marriage. A mediator will usually use special software, like Propertizer, designed for CFLS attorneys to tally up assets and figure out equitable splits. However, the actual process of dividing assets will be entirely in your hands. 

One advantage of the mediation process is that it focuses on your interests, not your positions. Instead of staking claims, a mediator will encourage you and your spouse to dig deeper and explore the reasons behind your desired outcomes. In most cases, there’s a way for both parties to fulfill their underlying interests at the same time, allowing for smooth asset division without any resentment. Put simply, you might not get everything you want, but you’ll get what you really need.

Here’s an example from our own practice: During the mediation process, we had a couple who couldn’t agree on who would get the house after the split. Both spouses had strong emotional attachments to the property, and they were both digging in their heels. However, after exploring the motivations behind their positions, they discovered that they had different reasons for wanting the house. The first spouse had not only paid for the home but had actually designed it themselves, and so thought of it internally as theirs. The second spouse, meanwhile, had a strong attachment to the memories in the house and wanted to keep living in the same home where they raised their children.

Ultimately, an agreement was made – the second spouse got to keep the house with all the memories, while the first spouse received enough money to design and build another one for themselves. While one partner technically “won” the dispute on the surface, both parties were able to fulfill the underlying desires behind their positions, making the resolution a total win/win.

This is the core principle that drives the mediation process. Like most family law issues, divorce is a delicate and emotionally complex procedure. It’s easy for couples to get caught up in trying to “win” disputes or protect themselves from being cheated, leading to conflicts and scars that never fully heal. However, by focusing on the deeper interests and motivations behind their positions, a good mediator can find solutions that leave everyone satisfied.

Preparing Yourself for Mediated Asset Division

The best way to ensure that your divorce mediation goes smoothly is to come prepared. A big part of that preparation involves collecting financial documents, so you’ll want to be sure you have all these things before your first session. Generally, the mediator will give each party a checklist with all the information and documents the process will require. Here’s an example of what you might need:

Income

• Tax returns for both spouses, usually at least the last five years
• Documentation of other sources of income, including Social Security, pension and retirement benefits like CalPERS, and so on

Real Estate

• Appraised value of both the home and the property where the family currently lives
• Appraised values for any other properties owned by you or your spouse

Physical Assets

• List of all vehicles owned and their current value
• Value of household furnishings
• Appraised value of any antiques, artwork, jewelry, or other physical assets

Non-Physical Assets

• Statements for all saving and checking accounts, usually for at least the last three years
• List of all investments owned, including stocks, bonds, and so on
• List of any patents, copyrights, or intellectual properties owned, as well as expected income

Benefits

• Premium costs and value of life insurance and health insurance
• Values of retirement accounts, pensions, or 401(k)

Expenses

• All real estate expenses, including mortgage, utilities, and taxes
• All vehicle expenses, including car insurance, maintenance payments, and car payments
• Current child care and schooling expenses
• List of any debts accrued during the course of the marriage, including personal loans, credit card debts, and education loans

Of course, the most important step to prepare yourself for mediation is to find a mediator that you can work with. You need someone you feel comfortable expressing yourself with and who can be trusted to handle delicate situations, so it’s key to find the right person. At Forester Family Law, we’re confident that we can fit the bill. Formed during the COVID-19 pandemic by Sacramento family law attorney Neil Forester, FFL is a primarily virtual firm that blends creative ADR methods with discrete advisory counseling to help clients resolve a divorce, parenting dispute, or other family law conflict – outside the courtroom confines. Neil, a self-described “recovering litigator,” spent 18 years working in family law in Sacramento before discovering a passion for working outside the courtroom, and he brings the full weight of that experience to every case. If you’re interested in scheduling a consultation with Neil, you can contact us through our website here or give us a call at (916) 234-6060.