The Amicable Divorce

There is a common misconception that divorce is a nasty affair between two bitter spouses, acted out through forceful litigators and numerous trips to court. While such divorces do exist, we believe that they are in the minority. The more common, but far less sensational, divorce is an amicable divorce.

What Is An Amicable Divorce?

The definition of an amicable divorce is open to interpretation, but we believe an amicable divorce is one in which both sides want to dissolve the marriage and where there is broad agreement on several key issues, such as maintenance, child support, custody, and property division.  The odds of having a truly amicable divorce decrease in relation to the number of outstanding conflicts between the spouses. If one spouse does not want a divorce or is entirely unwilling to divide the marital estate, it is unlikely that the legal process will make him or her more understanding or open to reasonable options. While an open, communicative, and fair divorce is still obtainable, it may not be amicable.

An amicable divorce is not the byproduct of a specific legal process and no attorney can assure you that your divorce will proceed amicably. While there are legal processes that focus on communication and cooperation, such as collaborative divorce, they do not ensure that the divorce will be amicable. A good attorney can help to reduce conflict by opening up channels of communication, providing you with resources to help with the transition into your new life, and fully addressing your legal issues. However, a lawyer can not ensure that your spouse and the opposing counsel are cooperative and you should be suspicious of any lawyer who makes those promises.

What Are The Benefits Of An Amicable Divorce?

Protecting your children’s well-being

When there are children involved, an amicable divorce protects the children’s well-being while also helping both parents play active, positive roles in the children’s lives.

“Sustained family conflict can cause children to experience the kinds of problems that are usually attributed to divorce: low self-esteem, depression, high anxiety, difficulty forming relationships, delinquency and withdrawal from the world. Given that reducing family conflict is good for children, the best way to protect them during divorce would be to minimize the acrimony of the proceedings.”[1]

An amicable divorce reduces the possibility that parenting time, custody, and child support are used as bargaining chips to gain the upper-hand on the other parent. Additionally, a hostile divorce will set the template for future interactions between the parents, lengthening the period of conflict and thrusting the children deeper into a world of family conflict.

A Faster Divorce With Reduced Legal Fees

It may go without saying, but an amicable divorce has the potential to reduce legal fees for both sides by reducing the number of trips to court and encouraging negotiation and compromise. With fewer issues in contention, the settlement negotiation process can be accelerated. Since lawyers typically bill by the hour, an amicable divorce will more than likely reduce your legal fees. Alternatively, if every dispute must be solved with court filings and hearings, legal fees will increase proportionately.

Less Intrusive

The divorce process will require you to share financial information with your spouse. For example, in Cook County, Illinois, spouses are required to share financial disclosure statements with each other. However, there are situations where a spouse may not be fully forthcoming, for example, where he or she owns a small business or has investments and is avoiding having those assets valued. This information is still available to the other spouse through the discovery process, which includes formal requests for document production, the employment of independent experts, and depositions. This process is not only expensive but it can be very disruptive and stressful for both parties. If a divorce proceeds amicably, these conflicts will be minimized, if not eliminated, through open information sharing and communication.

How Does My Attorney Play A Role?

The short answer is: while your attorney can’t make the divorce amicable, he or she can encourage or discourage cooperation, communication, and compromise. Your attorney’s style and approach will have a dramatic effect on how your divorce proceeds. Aggressive and spiteful attorneys will not help you and your spouse compromise and attorneys who wish to bring every issue before a judge can certainly harm communication, as well as dramatically increase legal fees. It is important to remember that you, and not your attorney, set the tone for your divorce.

What Are My Options Besides Litigation?

Mediation may be a good option for couples who are seeking an amicable divorce. In mediation, the spouses sit down with a mediator, who may also be an attorney, to reach agreement on issues in the marital settlement agreement. This process avoids frequent trips to court and much of the acrimony that comes along with a hostile, litigated divorce. While there are mediators who are not lawyers, it is beneficial to hire a mediator-lawyer.

Collaborative divorce is also a desirable option for those looking to avoid litigation. We have covered collaborative divorce in great detail in our practice areas page.

Are All Litigated Divorces Hostile?

Divorce litigation is a dispute resolution process in which opposing sides have a judge decide issues in their divorce by applying case law and statutes. While there is greater potential for hostility in a litigated divorce, it does not mean that all litigated divorces will be vicious or that the couple won’t be able to cooperate after the judgment for dissolution of marriage has been entered. There are many instances where a couple would feel more comfortable having a judge hear and decide on their issues. Again, the spouses set the tone for the divorce. If you and your spouse feel more comfortable presenting your issues to a judge, then that is the path you should pursue.

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