Amicable Divorce: It’s Not Just Agreeing with Each Other
Are you sitting down? I’m about to tell you something that may shock you: “Amicable Divorce” is not an oxymoron. It is possible and, in fact, relatively easily obtainable when the parties are (1) cooperative, (2) respectful of each other, and (3) committed to an efficient resolution.
This is not to say that divorce is a pleasant experience. It’s not. When you say “I do,” you typically are not contemplating later saying “I don’t.” When a child or children are involved, emotions may ratchet up in intensity given the importance of securing their future and their well-being. However, the single greatest impediment to an amicable divorce is one-sided (or mutual) animosity.
Generally speaking, an amicable divorce contemplates the efficient resolution and settlement of all issues incident to divorce including, but not necessarily limited to, child custody, child support, alimony, equitable division of marital property, the determination of separate/non-marital property, and any other issue (within certain guidelines) which may need to be addressed.
For example, how are pets handled in a divorce proceeding (you can find my blog on that topic here)? Who gets that ancient heirloom? What about the country club membership? Pool privileges? Alumni association privileges? The children’s artwork? The 60-inch flat screen in the basement? All are issues I have seen and addressed in the resolution of an amicable divorce.
There are two primary options one can take in pursuing an amicable divorce:
(1) Purely Uncontested Divorce: In a purely uncontested divorce, the parties may draft their own agreement resolving all issues which they feel need to be addressed in the “winding-up” of the marriage prior to filing the initial Petition for Divorce. Following filing the Petition for Divorce, the parties would file those documents with the Court and ask the Court to grant the divorce, which may require a simple hearing if the parties have children to confirm both parties understand the details of their agreement.
Alternatively, parties may reach an agreement on their own prior to initiating litigation and hire an attorney to draft the formal settlement documentation to ensure that items which they may not have thought of are addressed (for example, in an equal parenting time arrangement, who gets to claim the children on their tax returns in a given year?).
(2) Mediated Divorce: In nearly all divorce cases, mediation is a Court-imposed requirement which must be satisfied prior to a Final Hearing being scheduled. In mediation, the parties (whether represented by counsel or unrepresented) will individually present their respective position to a third-party neutral (the “mediator”) who will attempt to assist the parties to reach a settlement.
Mediation has an extraordinarily high success rate. If parties are unable to reach an agreement on their own, mediation may present the best opportunity for parties to resolve their issues between themselves on acceptable terms prior to incurring the expense of preparing for and attending a Final Hearing.
Utilizing the above avenues provides several benefits:
(1) Cost-effectiveness in that you avoid extensive litigation and the attendant attorney’s fees and costs of litigation;
(2) The ability to “control your own destiny” in that you do not leave a decision up to a third-party who will not and cannot possibly hear every fact of the marriage prior to rendering a decision;
(3) The ability to “walk away” from litigation with the knowledge that all that is left to do is “dot the I’s and cross the T’s”; and
(4) Provide you and your soon-to-be ex-spouse, in cases where there are custody issues involved, the ability to focus your energies on your children.
Unfortunately, there are instances where an amicable divorce is simply not possible. Parties may be too far apart in what they feel is a “just and right” resolution and must leave it to the Court to decide. Further, there is no obligation for either party to pursue an amicable divorce, although many courts institute certain rules upon the filing of a Petition for Divorce which generally govern the parties’ conduct in litigation, violations of which may be punishable by an action for contempt.
The decision as to whether an amicable divorce is possible depends on the facts and the totality of the circumstances. It is recommended that parties contemplating divorce, at a minimum, consult with an attorney specializing in divorce and family law matters prior to proceeding.
Contact Paul Simon at psimon@hhfamilylaw.com.
(Photo Credit: Frank McKenna)
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