The Amicable Divorce

An amicable divorce may seem like a contradiction in terms, but it need not be.  There are several ways that a fair divorce settlement can be reached out-of-court between mature, reasonable people – through mediation, a collaborative divorce, or an amicable divorce.

In mediation, the couple meets with a third party (often an attorney) who is familiar with the law and guides the negotiations during one or more mediation sessions.  During the sessions, the mediator will answer general questions, but does not represent either party and cannot provide legal advice.  Mediation may be appropriate if you have an idea what you want and you are confident and comfortable negotiating on your own behalf.  The mediator will guide both parties, but there is no one “in your corner” advocating just for you.

In a collaborative divorce, each spouse has their own attorney, but they agree in writing at the outset of the negotiations that they will not seek any court intervention.  If they do, they must each hire a new attorney.  Unfortunately, some people take an unreasonable stance in settlement negotiations when they know there is little chance the other party will go to court to enforce their rights.  For example, the non-custodial parent could refuse to agree to the presumptively correct amount of child support even though the custodial parent would be practically guaranteed that amount if a judge decided the case.

An amicable divorce, on the other hand, looks something like this – First, each spouse selects and retains their own attorney.  Some attorneys are better suited than others to the negotiation of an amicable divorce.  For example, you may want to steer clear of those touting their aggressiveness.  When selecting attorneys, the parties should make their expectations of amicable divorce clear from the outset.  Let the attorney know that you want to negotiate out-of-court, and your preferred timeline.

Next, each party meets separately with their attorney to discuss their goals for the case, and each attorney provides legal advice to their client tailored to his or her situation, both now and in the future.  The parties will each prepare, with the guidance of their respective attorneys, a sworn document called a Statement of Net Worth listing his/her expenses, assets, and debts.  After the Statements of Net Worth are exchanged, a settlement outline is proposed, and a four-way conference can be conducted where both parties sit down with their respective lawyers to try to come to an agreement on all issues – child custody, parental access, child support, spousal maintenance, the marital residence, pension benefits, etc.  Each party has an attorney to advocate zealously, professionally, and respectfully for their position, and gets legal advice along the way to help them decide when to compromise and when to persist.

Like mediation or collaborative divorce, it may take more than one session to reach a final settlement on all the issues.  There may be several proposals and counter-proposals made until a settlement is reached.  An experienced attorney will draw on numerous resources, including a nuanced knowledge of the law, familiarity with the courts, and likely outcomes at trial, to persuade your spouse of a position or a good compromise that avoids the expense and trouble of going to court, while keeping the process respectful and amicable.

Sometimes, despite the best efforts of all involved, the negotiations fail.  While there is little point to continuing out-of-court talks when it’s clear a deal is not forthcoming, it doesn’t mean you’re in for a messy, prolonged court battle.  It may only take a few court conferences and some input from the judge to finalize the negotiations and sign off on a settlement.  Going to court does not necessarily mean going to trial.  In fact, the vast majority of cases that go before a judge settle without a trial.

The advantage of an amicable divorce over a collaborative divorce is that, if the negotiations fail for whatever reason and court intervention is necessary, the parties have the option to keep the same attorneys.  After all, the parties will have built a working relationship with those attorneys, who are familiar with the issues of the case and the history of the negotiations.  It adds time and expense to the process if the parties must hire new attorneys, who then have to get the file from the outgoing attorney and get “up to speed” with the facts of the case.

To learn more about divorce mediation, collaborative divorce, or amicable divorce, and find out the best way to proceed given your circumstances, contact Petroske Riezenman & Meyers for a free consultation.  Our Long Island divorce lawyers have negotiated hundreds of favorable settlements on behalf of our clients, and we look forward to helping you.