If you and your same-sex spouse have begun thinking about divorce, you may wish to consider mediating it rather than litigating it. Not only does mediation represent a more amicable way to divorce, it also gives you both the opportunity to maintain control of your respective lives.
The Arbitration Law Review points out that mediation also provides particular benefits to same-sex couples. When the U.S. Supreme Court decided the landmark Obergefell v. Hodges case in 2015 that made same-sex marriages legal in all states, it did not follow up by mandating that states update their respective divorce laws to encompass this new law. Consequently, California law may not address some of the issues you and your same-sex spouse now face. Mediation solves that problem.
How mediation works
As your first step in mediation, you and your spouse need to agree on a neutral mediator. (S)he will become your facilitator and referee as the two of you negotiate and resolve your own issues. (S)he will also provide you with a neutral place, probably his or her office, in which the two of you will meet with him and her as many times as it takes to settle all your issues. Finally, (s)he will not allow either of you to disrespect, verbally abuse or steamroller over the other.
Depending on your situation, you can expect to negotiate such things as the following with your spouse:
- Your post-divorce custody and parenting arrangement
- Which, if either, of you will pay child support to the other
- Which, if either, of you will pay spousal support to the other
- Precisely how you will divide your marital property and debts between you
Because mediation is an out-of-court process, the judge will not be constrained by California law or court precedent. All (s)he need determine is whether or not your agreements are fair to both of you. You thus stand a good chance of obtaining your divorce without ever having to physically go to court.