The question is how to have an amicable divorce? The answer has three parts:
Every spouse should want an amicable divorce. “But Robert, I am sure my spouse will be unreasonable.” You may be right. But the simple fact is you will not know until you take the necessary steps to allow the divorce to be amicable. If you walk into a divorce with your emotions highly charged because you expect a “fight,” you may make poor decisions.
That is what this guide is all about – making good decisions on how to have an amicable divorce. Let’s get started.
What is an amicable divorce and what does an amicable divorce mean?
The word amicable means, ”friendly in attitude, or (of decisions or agreements) achieved with friendly attitudes and without unpleasant argument” according to the online version of the Cambridge English Dictionary.
An amicable divorce means a divorce without litigation. Litigation involves spouses who disagree on the end result and are unable to reach a compromise. That litigation may involve some or all of the issues in the divorce. Litigation can end up in a California divorce trial.
Unlike a litigated divorce, an amicable divorce involves the parties and their lawyers negotiating in good faith and finalizing a settlement. That settlement then typically becomes a formal stipulated judgment.
A common assumption is a divorce has to be either 100% amicable or 100% contested. That is not correct.
1. How to have an amicable divorce even when you cannot agree on everything
Two spouses can have reasonable disagreements without being at each other’s throats. Spouses who go on emotional tilts due to disagreements accomplish nothing in a divorce, other than anger themselves and frustrate their spouse. It is foolish, childish and inefficient.
If two spouses disagree on custody, that doesn’t have to hold up an agreement on division of the assets. And the opposite is also true. That is what an amicable divorce is about – getting resolved what should be resolved. As another example, while child support is tied to custody (and spousal support is often tied to child support), none of them have to be tied to issues like division of retirements.
2. How to have an amicable divorce when you are not ready to be divorced
Your spouse wants a divorce. You do not. Perhaps your spouse even blindsided you with service of a divorce petition. How are you supposed to have an amicable divorce when the thought of any divorce makes you angry, depressed or a combination?
First, you do not have to navigate the divorce on your own. The situation we described needs not only intelligent legal representation but also therapy.
Second, assess your spouse’s intentions with your divorce attorney’s help. Let’s assume your spouse wants an amicable divorce. If you have hired an attorney with significant family law experience who is intelligent and ethical, he or she should help you navigate the divorce process. From the petition or response, disclosures, gathering information and working toward resolution.
Third, consider whether mediation is a good idea. You should still have representation while you go through mediation and you should not come to any agreement or sign any document without your own lawyer’s review and approach but a mediation does make sense for cases that are not complex and will be amicable.
Fourth, make choices consistent with the law and do not make decisions that may hurt you in the short or long run just to “get it over with.” California law has set rules on what is community property versus separate property, how assets and debts should be divided, how child and spousal support is calculated and how child custody is determined. Understand each of these as applied to your case through an amicable divorce.
3. How to have an amicable divorce when your spouse committed infidelity
Infidelity incites emotions of betrayal, anger and even violence. We have seen spouses use the other spouse’s infidelity to justify using the children as leverage, alienating the children and fabricating false allegations about abuse, neglect and even on financial issues.
It is not worth it. Do not do it. You will make a difficult matter far worse for yourself. You may lose custody of the children if you make false allegations or engage in parental alienation. You are essentially abusing the children in the process. You may be significantly monetarily sanctioned and ordered to pay your spouse’s attorney’s fees.
Yes, it is possible to have an amicable divorce even if your spouse has engaged in infidelity. Is it easy? No. You are a human being. Your emotions may at times get the better of you. But the steps we laid out above also apply here. The surest way to your own mental and physical health after such an experience is healing, not lashing out.
4. How to have an amicable separation before or during your divorce
An amicable separation is sometimes easier said than done. When a spouse speaks to the other, he or she may say all the right things. And each spouse who hears those words may believe it. But one common reason a marriage fails is lack of trust. And that lack of trust manifests itself both before and after separation.
Fortunately, there is a way to have an amicable separation. It requires planning and preparation. The following assumes there is no physical, emotional or financial abuse involved nor any other concern about either spouse or child’s safety.
a. How to have an amicable separation before divorce
Here are some smart steps to have an amicable separation before divorce. This assumes you and your spouse both know separation is inevitable and it is not a question of whether but when and how.
Find with an experienced family law attorney to discuss your situation. This should be the first step.
Discuss with your family law attorney issues such as:
- Whether one of you will move out?
- What will be the parenting time between you two, even if temporary and short term while discussions are pending?
- What is guideline child support given the parenting time, income and other factors?
- What, if anything, will be the likely temporary spousal support calculation?
- Who will make the mortgage payment and other household related expenses?
- Anything else that may be important before there is an agreement on separation?
Once you have obtained intelligent advice and have direction, sit down with your spouse and discuss separation on each of the issues.
If you and your spouse reach agreement, go to your lawyer and have him or her draft a document for both of you to sign. It is best this agreement be in the form of a court order (which means a divorce should already be filed). But, if you and your spouse are not yet ready for that, a written and signed agreement that precedes a formal court order is better than a verbal agreement or no agreement at all.
b. How to have an amicable separation during divorce
The steps laid out above apply equally to an amicable separation during divorce. The only difference is a court order is much easier to obtain because there is a pending divorce.
Another factor to consider when a divorce is pending is the role two lawyers may play. It is best each spouse have his or her own attorney. Divorce is not supposed to be about one spouse taking advantage of the other. When two lawyers are involved, it is more common for the lawyers to communicate on behalf of their respective clients. Therefore, the negotiations that take place toward an amicable separation during divorce is likely best handled by the attorneys.
That is not to say spouses should not talk. Of course there should be communication. The nature or extent of that communication will vary from case to case and person to person.
5. How to have an amicable divorce with child custody issues
This one is easy – focus on the child’s best interest. I know, that is something else that is easier said than done. But it’s also the blunt truth on how to have an amicable divorce with child custody issues. If you are self absorbed and self focused (what is in your best interest), you make the odds of an amicable divorce far less.
Here are some tips:
- Don’t get caught up in percentages. It’s about quality time, not quantity time.
- Compromise. This is not about getting everything you want. If you are open minded about what is in the children’s best interest, you will likely find there is no one perfect parenting plan.
- Be sensitive to the children’s needs. If they have agreed upon extracurricular activities or other needs, come up with a parenting plan that allows the children to attend them without unnecessary burden on them.
- Be flexible with the other parent and build that flexibility into the schedule when it is consistent with the child’s best interest. Sometimes, it is you who may need the flexibility.
- Don’t overcomplicate the parenting plan. In Orange County, we have the Orange Count Parenting Guidelines which set forth different parenting schedules for different ages. These plans have been proven to work.
- Use effective methods of communication like telephone, in person and, if it must be in writing, services like Talking Parents or Our Family Wizard. We believe they are superior to text messages or emails.
- Change is inevitable. Embrace it when necessary. As children get older, their needs change and the parenting plan may also need to change.
Final tip – say 100 times “we are divorcing each other, not our children” until you mean it and believe it.
Please read our California child custody law guide to learn more.
6. How to have an amicable divorce when child support is an issue
Child support is a computer program. “Fair” has nothing to do with it. Unless one parent is an extraordinary high earner or there are other factors that legally justify deviation from the guideline child support formula, the courts usually follow the computer program. Sitting down with an attorney and figuring out what the program shows the numbers should be is the fastest way to get to resolution. Please do not try to figure it out yourself. Experienced representation is a must.
We highly encourage you to read our California child support law guide.
7. How to have an amicable divorce when spousal support is an issue
Spousal support can be an emotional juggernaut. Separate from the obvious tips of having experienced legal representation to ensure you are not paying too much or receiving below what you should receive, here are a few others:
Do not make threats like “I am quitting my job if you seek alimony” or “you will never see a dime from me.” In fact, chill out with the emotional outbursts. They accomplish one thing – to upset your spouse and cause further division between you two.
Do not get overly caught up in threats like those in number one. Sometimes, a spouse may state things he or she does not mean. Be logical about your situation. Emotions can run hot at times and then return to normal.
Do not lie about your income. It is not worth it. If you are caught, the judge may make orders that have severe financial consequences against you.
Read more on our guide on alimony in California.
8. How to have an amicable divorce when there are assets to divide
Just because there are assets to divide does not mean the divorce has to be contentious. There are assets that are community property, those that are separate property and those that are a combination. “Quasi” community property is another characterization. For our purposes, let us focus on assets that may be community and/or separate property.
A starting point for an amicable divorce with assets starts with the following:
- Determine if there is an agreement on the asset’s characterization – whether it is one spouse’s separate property, both spouse’s community property or a combination.
- If there is a disagreement, discover why there is an agreement and what documents and information should be exchanged to determine if one spouse is right.
- Determine the asset’s value to determine the cost versus benefit involved. A $20,000 disputed issue is very different than a $200,000 one.
- If valuation requires an expert’s advice (forensic CPA, appraisal, etc.) determine whether a joint one should be hired or each spouse should hire their own and have them communicate with each other.
- Exchange the documents and information through each of the experienced family law attorneys. Cooperation is important to resolution. It is rare the latter occurs without the former.
- Attempt to reach reasonable compromises.
How much does an amicable divorce cost?
We have written an article about the cost of divorce in California and we encourage you to read it.
Final thoughts on how to have an amicable divorce
Divorce does not have to be a war. It does not have to have a financially and emotionally draining experience. Through truthful disclosures and sharing of information and documents, mutual cooperation and attempts at reasonable compromise, the great majority of divorces can resolve.
If you have a family law matter in Orange or Los Angeles counties or the central courts of Riverside or San Bernardino County, please contact us for a strategy session to discuss you case. We can help you page the path toward an amicable resolution of your divorce.
This guide on an amicable divorce is not legal advice
This guide is not legal advice. Please do not apply it to your specific situation. You need legal advice customized for your case and needs. This guide only applies to California divorces. Please consult with an experienced family law attorney.