Skip to main content
Uncategorized

The Process of an Amicable Divorce

By August 11, 20222 Comments

AFTER YOU HAVE HIRED AN ATTORNEY

What follows is brief overview of an amicable process.  It is not meant to be the totality of explanation for the same; instead, we ask that you request a consultation (of an office conference if you have already retained our office) to explore such a process with an attorney so that you can understand an amicable process based on your specific facts.  Sometimes an amicable process (as described herein) is not what is best for you and/or your children (if any).

*****

You want a divorce BUT you want to keep it amicable.  What do you do?  For some people, they can file on their own without an attorney (pro se) and he/she may desire to go through the divorce process without the help of counsel (an attorney).  If on the other hand, you are like most others, you will want to retain counsel to assist you with the process.

In the event that you retain counsel to file for divorce, you may opt to file a “Basic Petition” that states you believe you and your spouse will work together to reach agreements regarding your children (if any) and the division of your assets and debts.  In our office, we will always make sure that you see a draft of the Original Petition for Divorce (hereinafter also “Petition”) before it is filed with the Court as it is our hope that you will be able to have the opportunity to ask any questions regarding the provisions in the petition.

After the petition is filed with the Court, you may want to  hand or e-mail (although we often find in person to be best if it is at all possible) your spouse a copy of the filed Original Petition for Divorce.  In our office, we also find that serving a spouse with the Petition by personal service from a constable or a private process server can be very startling and can, thereafter, cause the Respondent spouse (the one receiving the Petition) to be put on guard, be defensive, sometimes paranoid, and less likely to proceed through the divorce process amicably.

If you do want to go what we call the “Amicable Route”, we will put together a package to be taken to or delivered to your spouse that will contain:

  1. a file-stamped copy of the Original Petition for Divorce (the Basic Petition);
  2. a letter from me stating your desire to keep things amicable and work together; and
  3. a Waiver of Service for your spouse to sign in front of a notary.

The Waiver of Service (hereinafter also “Waiver”) is a document that once signed and filed with the Court lets the Court know that he/she has received the Petition.  If your spouse desires to execute the Waiver of Service, he/she must sign it in front of a notary public to show that he/she has received a copy of the Original Petition for Divorce.  After your spouse signs the Waiver, we will ask that he/she return the document to our office at which time we will file the Waiver with the Court.  Filing the Waiver with the Court lets the Court know that he/she has received the Petition and prevents the necessity of having the Petition served on him/her.  Always, in my letter to your spouse, I give a deadline (usually two weeks) for your spouse to sign and send the Waiver to me and if does not send the Waiver, then I will have him/her personally served.

It is sometimes the case that your spouse may desire not to sign the Waiver but instead will want to hire counsel of his/her own.  If that is the case, and you and your spouse still desire to move through the divorce process amicably, the process outlined below can still be followed.  So long as you both desire a resolution and process that is peaceful, your counsel is obliged (absent extreme circumstances) to move forward in such a manner.  If your spouse chooses to hire an attorney, that attorney will likely file an answer on behalf of your spouse making the need for a waiver to be signed moot.

Once your spouse answers (either by Waiver or filing an answer via counsel), we can proceed to collecting information and if necessary have an in-person office conference to discuss how issues (debts, expenses, support, house, kids, etc.) can be resolved temporarily.  Once agreements have been made on these issues, we can memorialize those agreements in writing via Temporary Order or just in writing via a written outline of the issues and responsibilities.

Please note: at any time in this process, your spouse starts to be less than amicable or violates agreements you have reached, we can file a Motion for Temporary Orders and seek relief from the Court.

At the first meeting or first contact with your spouse, we will ask that we exchange a Sworn Inventory & Appraisement (hereinafter also “Inventory”) which is a document you will each individually complete with the significant information regarding your assets (401k, house, car, bank accounts, etc.) and debts (mortgage, credit cards, personal loans, other liens, etc.).  We will provide you both with the form (or if there is opposing counsel ask that he/she provide the filled out form) and determine a deadline we can agree on to exchange the Inventories with at least a month’s worth of statements and other information.

Once we have exchanged Inventories, we can proceed to an informal conference or a Mediation (see other handout for the description of a Mediation).   An informal settlement conference is simply a meeting at my office where we will discuss the final division of assets/debts and discuss final issues regarding the children (if any) such as possession and support.  Sometimes also, there is no need for either of these options because you and your spouse have already determined what you want in the Agreed Decree of Divorce (hereinafter “Decree”).

 

Once we have resolved what needs to be in the Decree, our office will work on drafting the decree.  Depending on what is happening on our docket (litigation in other cases), the drafting can take a longer period of time; however, typically, it can take from 2 to 3 weeks to provide you with a draft of the Decree.  You will get to see the draft first and, if necessary, we can meet to discuss certain provisions.  When you are satisfied with the Decree, we will send it to your spouse (or his attorney, if one) and wait for him/her to review the same.

I will usually at that time ask you and your spouse (if your spouse is unrepresented) to schedule an office conference to review the final version of the decree.  At that meeting, we may need to revise the decree which is fine so long as you and your spouse both agree.  Also, at that meeting if we have a version that you and your spouse are satisfied with, we will have you both sign the Decree.  When the other party is pro se, we will always require a notary for his/her signature and we will require that you both initial all the pages of the Decree so that it is clear that you have both (particularly your spouse) has seen and approved the Decree.

Then you and I will find an agreeable date to go to the Courthouse and “Prove Up” your divorce.  Because your spouse has signed the Decree, he/she will not need to attend the Prove Up.  See handout that explains the “Prove Up” process.

As always, please let us know if you have any questions regarding the above, and as I mentioned earlier, we can always schedule an office conference to discuss any questions that you might have.

2 Comments

Leave a Reply