An Amicable Divorce? It’s Possible: Just Follow These PrinciplesJuly 11, 2017 – Articles The Legal Intelligencer
If you ask someone to list three words that come to mind when they think of divorce, "amicable" most certainly would not be one of them. Although divorce is, by its nature, emotionally draining and financially complex, it does not also have to be highly contentious and litigious. As an attorney practicing exclusively family law, whenever I mention the concept of an amicable divorce to clients, nine times out of 10, people look incredibly surprised. "But wait, I thought the only way to get (fill in the blank) was to go to court?" Most are also surprised to hear that very few family law cases actually proceed to trial and that most are ultimately resolved by a settlement reached between the parties.
Even if the case does not proceed to trial, the manner in which spouses conduct themselves during a divorce proceeding can plague them for many years to come, even long after the divorce is over. If spouses choose to treat each other and the process with contempt that is likely how their relationship will remain post-divorce. If spouses choose to work together toward ending their marriage respectfully, it goes a long way toward creating a cooperative post-divorce environment.
Below are some tips on how to best work together with your spouse to achieve an amicable divorce:
• The most important thing you can do when going through a divorce is hire an effective and experienced lawyer.
"Lawyering up" does not have to mean your divorce will be adversarial. It simply means that you will have the comfort of knowing you are not navigating this emotionally and financially complex process alone. This comfort will allow for more informed decision-making. Your divorce lawyer should also be someone with whom you feel comfortable, as you will be sharing a lot of personal information. It is important that you both have a similar approach to conflict-resolution in order to achieve the desired outcome of amicability. All too often I find that when one party hires a lawyer who touts themselves as "highly aggressive" or a "shark," this only yields increased counsel fees and animosity, not results.
• Be emotionally ready to get divorced.
This may sound counterintuitive, as most people are never "ready" for divorce. That said, a surprise or spiteful divorce filing often leads to unnecessary contentious litigation. In many marriages, one spouse has been silently contemplating divorce for many months, while the idea of divorce for the other spouse is something very new. This person simply needs time to "catch up" emotionally before being able to rationally jump into a divorce proceeding. When both spouses are more emotionally prepared to move forward, it is much easier to achieve an amicable divorce. Although life after divorce is likely going to look much different from married life, that is not necessarily a bad thing.
• Seek out alternatives to traditional litigation, such as mediation, arbitration or the collaborative divorce process.
These alternatives often provide a more expeditious and less expensive method of resolving a dispute when compared with traditional litigation. While most people are familiar with mediation and arbitration, a growing trend in family law is the idea of the "collaborative" divorce. The bedrock of collaborative divorce is that the spouses (and attorneys) commit to resolving the divorce (and all issues stemming therefrom) in proactive, results-oriented, cooperative fashion, outside of court, with a promise to use transparency and good faith when negotiating. The spouses also agree that if either of them terminates the collaborative process in favor of instituting litigation, they both must hire new attorneys (and expert professionals), essentially starting the entire process over.
• Find common ground.
What is "easy" is very, very different for each couple. However, finding any semblance of common ground to resolve the easy issues first, can act as a powerful springboard to resolve the other, more difficult issues. The ability to find common ground, no matter how small, instills confidence in both spouses that they can come to a resolution on issues even if their marriage is over. Similarly, do not sweat the small stuff; and most of it is small stuff. Take a breath and ask yourself, is this going to matter to me in one year? The answer is almost always no.
• Create your own divorce story.
Divorce looks very different for each family. Do not try to model or compare your divorce to what happened to your sibling, your neighbor, your colleague, etc. Talk. Your marriage, your finances and most importantly, your children are unique.
• Be truthful with yourself, your spouse and especially your lawyer.
While disclosing some facts about your marriage might seem hurtful or embarrassing, the easiest way to end up in a contentious litigation is to be untruthful. Family law attorneys have truly heard it all so it is very likely they have already represented someone with the same/similar set of facts. • Set reasonable expectations. The old adage "Rome wasn't built in a day" also applies to divorce. You must set reasonable expectations as to how long your divorce is going to take to be completed; how long it will take for you and your spouse to become completely financially untangled; how co-parenting in separate households is going to work; and most importantly how both parties are going to cope in a post-divorce world. One of the most commonly used maxims by family court lawyers and judges alike is that the mark of a good settlement is that neither party is happy. A settlement reached by and between the parties is almost always better than one forced upon them by the court.
• Live in the present.
The fastest way to a contentious divorce is to live in the past or be caught up in the "what ifs." While it is easy to say that one spouse is more to blame than the other for the divorce, most states have "no-fault" divorce proceedings. In other words, with the exception of a few circumstances (such as the wrongful dissipation of marital assets spent on a paramour) the court does not consider fault when awarding financial support or distributing marital assets. Further, while it is important to look for long-term and sustainable solutions during your divorce, trying to account for every potential future what if is counterproductive and likely anxiety producing.
• Do not be afraid to ask for help.
Asking for help applies not only to utilizing a financial planner and mental health professional; it also means reaching out for assistance in much smaller and practical ways. Do not hesitate to ask a friend or trusted neighbor to help pick your child up from school when you are in a pinch instead of starting an argument with your almost ex-spouse. Look into ways to maximize your time such as grocery delivery, school/activity carpools, etc. It certainly takes a village to raise a child, but a village is also helpful when you are going through a divorce.
• Always put your children's interests first.
If both spouses subscribe to this mantra, the rest will fall into place.
Reprinted with permission from the July 11 issue of The Legal Intelligencer. (c) 2017 ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved.