Amicable Divorces: What Are They and How Do They Work?

By:
Michael Tierney
Updated
August 3, 2022

Divorce is challenging and tiring, often with drawn-out arguments between you and your spouse and frequent communication with attornies. The minor details can become serious roadblocks and induce conflict. Some divorces are relatively straightforward, with their assets divided and custody agreed upon. Others are much more combative, and it can seem impossible to come to a mutual agreement.

The entire ordeal is something that can stress you and your spouse out and leave you both feeling exhausted and emotionally drained. It is possible to divorce in a way that does not cause as much emotional and psychological damage. Though it might seem impossible, you can undergo an amicable divorce if you and your spouse can come to a mutual understanding.

Amicable divorces are rarer than most hope they would be, especially given that over half of all American marriages end in divorce. However, divorce does not have to destroy your relationship with your future ex-spouse. With the proper disposition and resources, you can sit down and have a rational conversation with your spouse and work to mitigate the financial, emotional, and psychological toll. The process will require immense patience, compromise, and mutual respect, but it is feasible. Amicable divorces happen every day.

Before you can set out to pursue an amicable divorce, it helps to understand what exactly such a process entails and whether or not you can have an open conversation about this with your former partner.

Let's get started!

What is an Amicable Divorce?

Solution An amicable divorce, also known as collaborative divorce, is what the name implies: an amicable divorce is when you negotiate with your future ex-spouse without getting drawn into a lengthy legal battle over assets or visitation.

Many do not realize that there is such a thing as an uncontested divorce, in which you and your spouse agree to terminate the marriage without much argument. The only real concern is how certain assets are divided since this can be one of the biggest sources of conflict between a divorcing couple - even a split with your close friend can be an amicable negotiation with the right tools.

An amicable divorce involves the assets from the marriage being agreed upon with minimal discussion, anger, or argument. As a result of the minimal conflict, you can preserve a positive relationship with your former spouse. However, amicable divorces can be difficult to secure because of the numerous conflicts divorce is known to elicit. Even those who are successful in going through an amicable divorce might still struggle with lingering resentment if there were any points of contention in the marriage.

Couple Amicably Filing For Divorce

Understanding what an amicable divorce is and how it works is very different. It is no secret that an amicable divorce comes with a few benefits that a traditional divorce cannot offer. For example, an amicable divorce allows you and your spouse to control:

  • The cost of the divorce.
  • How the case settles.
  • The divorce process itself.

If you are interested in trying to secure an amicable divorce with your spouse, there are a few things you should know and a few resources you will need. The most important of which is a mediator:

What Does a Mediator Do?

While an amicable divorce is ideal for many separated couples, it does not mean you can negotiate terms alone. The chance of settling a divorce amicably between you and your spouse alone is next to impossible. The emotional investment you each had in the marriage and the emotions tied to divorce can adversely affect your ability to remain civil. This is why many amicable divorce proceedings use an impartial mediator to guide the process.

Solution The mediator is not an attorney but a counselor to help you divide your assets reasonably while ensuring arguments do not take you off course. A mediator is not mandatory but can help prevent your amicable divorce from becoming hostile. The mediator offers advice based on the living situation of you and your spouse to help determine which assets are best placed where and to try and neutralize any demands that might be considered spiteful or petty.

However, mediators hold little legal power. The mediator is typically responsible for drafting and submitting the divorce settlement agreement you and your spouse create. The mediator's primary goal is to help you and your spouse resolve any lingering issues or conflicts that could influence your decision-making. They will use this resolution to help create fair terms for the division of assets, child support, and custody.

Speaking With a Divorce Mediator

If you choose to have a mediator present for your divorce negotiations, you will find the odds of an amicable divorce get stronger. However, you will need to secure a reliable mediator as they are not meant to pick sides but merely help move the negotiations forward and keep things fair.

While you might be concerned about the number of unreliable mediators, you have less to worry about than you think. Most states require divorce mediators to undergo extensive training before they can practice. Your mediator will be able to balance the power dynamic between you and your spouse during the talks. As a result, most mediators are reliable since they are thoroughly trained to ensure both parties get a fair say.

Once you have secured your mediator, the divorce talks can officially begin. You might be wondering how those talks proceed from here. The answer is not always the same, but a general process is usually applied to any given situation.

What is The Amicable Divorce Process?

Before the negotiation process for your amicable divorce begins, you must complete some preparation beforehand. If you elected to use a mediator's services, you and your spouse might be asked to provide some insight into how your marriage was and what day-to-day life looked like while you were still together.

Divorce Negotiation Process

In some cases, you will be asked to provide a written statement that your mediator can reference throughout the negotiations.

  1. You can perform the talks online or in person, depending on your circumstances. Following the rise of the COVID-19 pandemic, most divorce talks were online for safety. Since then, online negotiations and trials have only increased to ensure that everyone involved remains healthy. Either way, ensuring you access the location or website where the negotiations will take place is crucial. The last thing you want is to enter the negotiations 20 minutes late, which can severely impact your case. For most of the negotiations, you and your spouse will be in the same space or chat room.
  2. If you or your spouse elected to have legal representation present for the process, which is sometimes detrimental to your chances of an amicable resolution, your mediator might want to speak with them privately. This private discussion with your legal counsel helps the mediator get some insight into both parties' end goals, which can help the mediator keep things running smoothly.
  3. Once this is over, there will be a period where both you and your spouse will have an opportunity to speak. These statements, while brief, are meant to help you illustrate your circumstances and why you are requesting certain assets. There might be some follow-up questions to your statement, but for the most part, this is where the negotiations themselves begin.
  4. You and your spouse will begin talks and determine what points of the divorce you agree on and those where you disagree. For example, you might completely understand letting your spouse keep a specific piece of furniture but are adamant about a certain detail of child custody.
  5. You do not have to agree with your spouse's point of view, but you need to be open to understanding it. An amicable divorce will require compromise and a willingness to listen to what your spouse has to say actively. Failing to do either will cause the negotiation to deteriorate into a full-blown argument and could destroy your chances of resolving things amicably. Understanding your spouse's point of view could reveal solutions you had not previously considered, and it goes both ways, meaning your spouse will be shown similar alternatives.
  6. Once the negotiations are complete and you and your spouse have resolved the issues relevant to the divorce, a settlement agreement will be drafted. Should you retain one, your mediator will ordinarily draft this, along with a parenting plan, on your behalf. Depending on the scope of their services, they will then present this to the court for you, at which point the court must either approve or deny the agreement. If the agreement is approved, it becomes the official divorce decree and will be enforced once your divorce is finalized.

There are instances where these negotiations are not necessary - specifically if you have an established prenuptial agreement or the divorce petition was signed as is. An uncontested divorce can start amicable but deteriorate down the line. These negotiations help you both say your piece on the status of the relationship and ensure both your needs are met without destroying your ability to cooperate.

Do You Need An Attorney?

While attorneys are common during divorce proceedings, for obvious reasons, the question of how an amicable divorce affects their presence remains. The issue with this is that there is no right answer when retaining a divorce attorney when the goal is an amicable divorce. An attorney is seldom necessary if the divorce is uncontested since the divorce terms have been agreed to in full. When negotiating for asset division or custody arrangements, it might seem strange not to have your attorney present.

There is technically nothing preventing you from having your attorney present during the negotiations outlined in the previous section. As we said, your mediator will want to meet with your attorney before the talks begin, should they be present. However, having your attorney present during a meeting that is meant to be private can cause your spouse to feel slighted. In some cases, your attorney's presence can undermine the goal of an amicable divorce.

Hiring a Divorce Attorney

It is important to note that this is not always the case and the situation changes depending on your circumstances. Your attorney does not necessarily have to be present at the negotiations to be of assistance. You can consult your attorney before and after the negotiations to get their input. Before the mediation process, your attorney can help you locate a mediator for the negotiations. Remember, you will need to get the mediator approved by your spouse since you both deserve input on who oversees the talks.

Your attorney can also review the agreement prepared by the mediator to ensure they did not show favoritism to either party. Furthermore, none of these services require your attorney to present during the negotiations. Hiring an attorney is always advised, given the amount of paperwork and advice you will need during the divorce. If you want to maximize your chances of an amicable divorce, keep your attorney at a distance unless your spouse brings their attorney to the negotiations.

Learn the Law

Divorce is one of the most dreaded civil cases in existence. It is often the result of a love that has faded and given way to resentment and bitterness. Fortunately, divorce proceedings can be less draining if you and your spouse can remain on friendly terms during the process. This amicability can help produce a fair divorce agreement for both of you while maintaining your ability to cooperate. In some rare cases, negotiating an amicable divorce is enough to uncover the issue that led to the divorce and opens the door for reconciliation. Nevertheless, an amicable divorce is one of the few good divorces.

Couple Filed for Divorce

While an amicable divorce is preferable to a hostile one, it is still a divorce. Unfortunately, divorce can be a treacherous legal process that can blindside you if you are unprepared. Even though your attorney, should you retain one, is trained to protect your interests, getting some firsthand knowledge is always a good idea.

The more you understand the divorce process, the better equipped you will be to recover once the dust settles. Once upon a time, information on divorce was restricted to legal textbooks that were not exactly accessible to the average citizen. Nowadays, it is completely possible to access that information with a few taps on a keyboard.

Written By:
Michael Tierney
Michael is a legal writer and graduate of WSU. Prior to becoming a legal writer, he had 6 years of experience as a legal assistant and office manager for a family law attorney. He's written about numerous legal subjects from helping spouses who are stuck in toxic situations to the intricacies of custody battles. In his spare time, he enjoys hiking, rock climbing, and building custom keyboards.

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