45 Divorce Mediation Checklist Items on Child Custody, Support, Assets and More

This may be a home, rental real estate, land, commercial property, or a combination.

The checklist should include the mortgage balance due on the property. The mediator will probably talk to you about the real property's value. Some websites give a general idea, although they should not be relied on for the ultimate value.

At this point, this is not an itemization of everything but only the high-value items. If there are no high-value items, it may not be as helpful for the initial session.

The checklist includes checking and savings accounts, credit unions, brokerage accounts, etc. The documents can be the name on the account and the last 4 digits of the account number. It is helpful if you include the current balance on the account.

This may include IRAs, 401(k), 403(b), pensions, profit-sharing plans, deferred compensation plans, annuities, etc. If you have the most recent statement, that will be helpful.

You should include term policies, whole policies, universal policies, and any other life insurance policy. A recent policy declaration page for each policy is helpful if you can locate it.

This is a list of each business one, or both spouses operate or in which either spouse may have an interest.

The business' name, the type of business (corporation, LLC, partnership, etc.), and the most recent business tax return filed are helpful. Suppose the business is one in which the spouses have a passive interest but are not involved in management or operation. In that case, the most recent statement of that financial interest is helpful.

A list of these is helpful, along with a recent statement that explains its value.

You should have personal tax returns for at least the past tax year and ideally the past three years. These are usually joint tax returns. If the spouses filed married filing separate returns, each spouse should bring their tax returns.

If the spouses believe there are significant debts or liabilities, or there may be one or more coming, they should list them.

For example, if both spouses are W2 employees, the spouses can bring their YTD paystub and briefly explain their income structure (hourly, salary, bonuses, commissions, etc.).

This information will help the divorce mediation attorney to engage both spouses into a discussion about a reasonable parenting time plan and legal custody issues.

1. Understand the difference between joint legal custody and sole legal custody, and which is in the children's best interest.

2. Determine what joint legal custody, "decision-making" issues you want the consent of both parents versus those that only require parents to confer.

The difference is significant because there are different ways to write joint legal custody settlements. Parents should be clear what decisions regarding the children must have both parents' consent and which decisions do not.

Examples may include:

1. Enrollment in or leaving a private or public school or daycare center,
   
2. Beginning or ending any medical or mental health counseling or therapy,
   
3. Enrollment in and participation in extracurricular activities,
   
4. Selecting a doctor, dentist, or other healthcare professionals,
   
5. Participating in particular religious activities or institutions,
   
6. Obtaining a driver's license for a child, and more.
   

Sometimes, parents may want joint legal custody, but one parent will decide if there is a disagreement. If that is your situation, make sure it is clear which parent makes those decisions and specifically to what topic or topics that applies.

1. Review the parenting guidelines for the county in which your case is pending to become familiar with the different types of parenting plans.

Suppose the county in California in which your case is pending does not have parenting guidelines. In that case, we suggest you review the parenting guidelines for Orange County because it is probably the most comprehensive. It will still be helpful to you since parenting plans are common throughout the State of California.

2. Does the parenting plan expressly set forth each parent's parenting time? Some parents like parenting time with significant flexibility. Other parents want specific dates and times. You then have everyone in between. If the parents have an excellent co-parenting relationship, flexibility may be helpful to the parents and the children. Suppose the parents have trouble communicating and agreeing to changes in a prompt and amicable manner. In that case, it is better to have specific dates and times for parenting time.

3. Who will handle the transportation for the parenting time, and where will the place of exchanges be?

4. Negotiate a specific holiday schedule with the children. It is common for parents to divide short holidays on an odd year / even year basis. Parents typically divide the longer holidays like spring break, Thanksgiving, or Christmas equally.

5. Negotiate a specific vacation schedule that states at least the following:

• How much vacation each year that each parent receives with the children,
  
• How much notice each parent must give for the vacation,
  
• Which months of the year the vacation will be,
  
• Whether the vacation must be within California, versus the United States or even outside the country, and
  
• Who gets priority if there is a conflict with the chosen dates for vacation. Most negotiations on the conflict issue give one parent priority in all years and the other parent priority and even years.
  

1. Make sure the mediator uses a current child support guideline software program when calculating guideline child support. You would be surprised how many people rely on old versions of the program that can make a difference in the child support number.

2. Child support is a guideline formula, so make sure all the guideline factors are part of the negotiations. The factors include but are not limited to the following:

• Number of children,
  
• Each parent's parenting time,
  
• Filing status as single, head of household, or something else,
  
• The number of federal exemptions,
  
• Each parent's income,
  
• Other taxable and nontaxable income,
  
• Any guideline adjustments to income,
  
• Health insurance coverage costs if that is applicable,
  
• Items like qualified business income deduction if applicable,
  
• Itemized deductions,
  
• Required union dues,
  
• Mandatory retirement if it is a government employee,
  
• Hardship deductions, and
  
• Other guideline deductions and more.
  

An experienced mediator can walk you through each of these factors to determine which ones apply to your situation.

3. The base and monthly child support amount should be clear.

4. If the child support is going to include a percentage of bonuses, overtime, or additional income, in addition to the base child support amount, you and the other parent should be clear what that percentage is, how it changes depending on the amount of this additional income and whether it is a one-way or a two-way additional child support provision. This additional percentage is sometimes called an Ostler-Smith order.

5. Negotiate the percentage each parent will pay for mandatory additional child support. These are typically called child support add-ons. These may include childcare costs related to employment or reasonably necessary job training and reasonable uninsured healthcare costs for the children.

6. If the parents have special-needs children, cost allocation for the special-needs should be part of the child support order.

7. Child support negotiations should also state who will provide the child or children with health insurance coverage.

8. Negotiations should include whether the child support is paid through wage garnishment or other ways. The mediator should educate you on the State Disbursement Unit for child support payments.

1. The single most important checklist item for spousal support is a clear understanding of Family Code section 4320. The code section is the starting point for understanding how spousal support works in California. Before starting your negotiations, make sure you read this code section and understand it. That understanding is also where an independent attorney can help.

2. How much does the length of your marriage affect the spousal support duration? You should know the difference between a short and a long marriage and how California differentiates between them.

3. How much spousal support is necessary to maintain the status quo and the marital standard living during the marriage?

Marital standard of living is one of the Family Code section 4320 factors. However, you should pay special attention to this topic during negotiations.

The marital standard of living might be a simple issue if the income during the marriage, especially during the last three years to five years, was predictable and stable.

However, if the income significantly varies during the marriage or one spouse has a much higher or lower income since separation, this issue becomes complex. During mediation, you should discuss this issue.

4. What if the spousal support is open-ended? That means it is until the death of either spouse, remarriage, or new domestic partnership of the spouse receiving support or further order of the court. In that case, it should be clear in that regard.

If it has a termination date, the termination date should be clear. Negotiations should also be clear about whether the termination is a final termination of spousal support and the court's power to ever award it or something else.

5. If the spousal support amount is both a monthly base amount and an additional amount based on bonuses, overtime, commissions, or additional income, that should be clear. Suppose there are limitations or a cap on how much this additional spousal support will be. In that case, the language should also be clear in that regard.

1. Distinguish between what is community property, separate property, or a combination of both.

2. The goal of a settlement in mediation is to be reasonable and consistent with an equal or nearly equal division of all the community property assets. Be careful entering into negotiations without having a valuation of all the assets. If you enter negotiations without a proper valuation, you essentially negotiate in the blind.

3. What if one spouse receives an asset with a loan, mortgage, or other encumbrance, and the other spouse is also on that loan, mortgage, or encumbrance? In that case, the negotiations should specifically address whether refinancing or a loan modification is taking place.

The scenario is common with a home. For example, a home purchased during the marriage that is community property usually has both spouses on the title and loan.

If one of the spouses is getting the house and buying out the other spouse, or there is a trade of the house for another asset, the spouse who is not getting the house probably does not want to remain on the loan. Why? Because that could significantly affect their borrowing power.

Make sure the negotiations are clear about that removal from the loan.

4. The settlement negotiations should be explicit on who gets what and why.

5. If there is a business involved, one or both spouses may also need advice from a business transactional attorney. This is especially true if the business has other partners, shareholders or members (depending on the type of business) or both spouses operate or manage the business and may be partners, shareholders or members of that business.

Negotiations should probably get a business attorney involved so the business attorney can provide advice and draft documents to ensure what the spouses intend as part of the settlement happens.

6. The judgment should be clear about how debts and liabilities are divided.

Sometimes spouses trade debt for assets where one spouse may take a more significant portion of the debts but in exchange, get a larger portion of the assets.

The trade-off can be dangerous. There may be unintended consequences if that spouse fails to pay the debts and the creditor (who is not a party to the divorce settlement) comes after the other spouse.