An Amicable Divorce – Is It Possible?
The short answer is yes! Absolutely! Expectations need to be managed as even in the best of situations there still can be hostility and, consequently, hiccups. But, these hiccups can be worked through.
There are numbers of ways that an amicable divorce can take place. For example, mediation, collaborative law and where one party is represented by an attorney and the other party is not. I want to focus on the last option, as it is a way I have helped a high percentage of my clients get divorced for over a decade. Here is how it works in brief.
The husband or wife comes to me for a consultation. He or she retains me, we complete the Petition for Dissolution of Marriage, file it with the Court and serve the other spouse. The other spouse can either come to my office to pick up the Petition, thereby being served, or the Petition can be mailed to the other spouse and he or she can sign a Notice and Acknowledgement of Receipt. The date of service is important because a Judgment for Dissolution of Marriage will not be entered by the Court until six months from the date of service. I will talk about the Judgment below.
In addition to filling out the Petition with the spouse who retains me, I also immediately commence the disclosure documents. These documents lay out all the income, assets and debts of the parties and are used to determine child support, spousal support, property division, any reimbursement issues and attorney's fees and costs. Business owners will likely need to retain a forensic accountant to value their businesses and determine their income available for support; this step, and being honest in this step, is crucial to the amicable divorce process.
W-2 wage earners do not necessarily need a forensic accountant to determine their income. Although, with the level of complexity of paychecks, withholdings and deductions it is not a bad idea to have a forensic accountant, or your own CPA, assist you with completing any family law documents pertaining to your income. It is also a good idea to have a forensic accountant assist with any reimbursement issues. For example, if a house owned before marriage was sold and the net sale proceeds were used to purchase a house at or near the date of marriage then there may be a reimbursement issue. Although, I have had many a case where my clients, or the other spouse, clearly trace their reimbursements on their own and these numbers are accepted.
Once the other spouse is served with the Petition and the disclosure documents are completed, then he or she needs to complete the disclosure documents as well. Once each party's disclosure documents are exchanged, we then begin discussions about resolving issues in the case. By this point. my client and the other spouse have sat down and had meaningful discussions about child custody, child support, spousal support, property division, reimbursements and attorney and expert's fees and costs. While I can advise my client on the law and legal consequences of decisions, I cannot give legal advice to the other spouse at any time. If terms for resolution of issues can be reached thirty days from service of the Petition for Dissolution of Marriage, and before the timeframe for the Response to the Petition for Dissolution of Marriage is due, then the Response need not be filed. The Response filing fee can then be avoided.
As a caveat, if retirement plans are being split then the parties may need to retain a Qualified Domestic Relations Attorney to review the terms of any Judgment and divide the plans. This is usually a set and predictable fee and I mention it to avoid any surprises.
Once the parties reach an agreement on all issues, I draft the Judgment for Dissolution of Marriage, send it to the other spouse for review, approval and signature, and then submit it to the Court for filing. I always tell the other spouse to take it to an attorney of his or her own choosing to confirm that the terms in the Judgment are fair and what the law would provide. Once I get the signed Judgment back from the other spouse, it is then submitted to the Court, and the Court either waits the six-month time period to enter and return the Judgment - officially divorcing the parties - or returns the Judgment with an entered date in the future and the parties are not divorced until that date. A similar process can apply to Paternity cases, but for purposes of this blog post I am addressing divorce cases only.
This material is provided for educational purposes only. Providing this information does not establish an attorney/client relationship. None of the information contained in this newsletter should be acted upon without first consulting with an attorney. Should you have questions about the content of this newsletter, please arrange to discuss via a consultation.