Every divorce is unique, just as every marriage is unique. No two couples place the exact same level of importance on every issue that arises during a divorce. Different compromises must be reached to achieve a result both parties can accept. Mediation is a way to achieve that result and it may be particularly useful for same-sex couples.
How does mediation differ from a litigated divorce?
When a divorce is contested, the couple seeks to have their wishes fulfilled judicially. They make their case before a judge, hoping the judge will agree with their point of view and give them what they want. But the decisions themselves lie with the judge, not the parties, leaving open the possibility that what they get won’t even resemble what they wanted.
Mediation, on the other hand, keeps the decision-making power in the hands of the couple themselves. If they can communicate and resolve issues together, they retain control of the outcome – it is not forced upon them, because the resolution of every issue is something that they have negotiated and agreed to. They may not get everything they want but there also will not be any surprises.
How does this help same-sex couples?
Although the law now treats same-sex couples equally to heterosexual couples, this is still a fairly new development. And the newness of the law’s change can still impact a same-sex divorce in unique ways. Take property division, for example. Since California is a community property state, marital property will be divided equally between the spouses.
The problem is that marital property is counted from the date of the marriage. This makes sense for heterosexual couples but, because the legalization of same-sex marriage is still recent, the effective beginning of a same-sex couple’s marriage can be much earlier than the legal beginning of that marriage. In this context, court-ordered property division may not make sense for the couple.
A mediated divorce settlement, however, allows same-sex couples to account for the entirety of their relationship, rather than only the window recognized by law. They’re able to structure an outcome of their choosing, based on the totality of their relationship and their own personal needs.