The secret to an amicable divorce or separation

Divorce is never easy. But if you can find a way to come to an amicable agreement with your partner, you can save yourself a lot of time, money, stress and heartache. You’ll also make it a lot less painful for your children. 

The unwanted filing for divorce and separation is likely to be one of the most stressful times of your life. When you separate from your partner lots of changes happen at once, and you’re faced with so many as-yet-unknown factors, such as what will happen with your finances? And where will your children live?

The key to a less stressful and more amicable divorce (which is easier on everyone, and much less expensive) is to approach it in the right way. Keeping the process non-confrontational is likely to lead to longer lasting solutions.

To help you and your partner reach a more amicable agreement, Family law solicitor Angela Lally shares her advice.

An amicable divorce is better for everyone

The more that you can agree on with your partner, the better. If an agreement is reached between you about how the finances will be divided and what arrangements will be put in place for your children, you’ll retain control over your own lives without having the decision made for you by a court.

While an amicable approach may not always be possible and certainly there can be a lot of anger and anxiety involved in separation, if you are able to identify the issues and work towards an amicable solution this is more likely to result in a less painful separation.

If you have children together, you’ll remain a part of each other’s lives going forwards (you may be separating from each other, you do not cease being parents and being involved in decisions regarding your children’s future) so the more you are able to get on and agree, the better.

If your children see that you are getting on, it will make the process easier for them to cope with and come to terms with too.

Get your emotions in check first

One of the first points to consider is the emotional aspect of the separation. This is not dealt with by the legal process, but if you can come to terms with your emotions, it will help you to deal with the other aspects of your separation, such as finances and children, more easily.

Without your emotions clouding the issues, you can make more practical and informed decisions.

It’s a good idea to get help from a counsellor early on. A professional who is experienced in dealing with relationship breakdowns will help to guide you in the right direction, before things become bitter.

The three parts of separation

The process of separation can be broken down into the following parts:

  1. Divorce.
  2. Children.
  3. Finances.

1) What are grounds for divorce?

If you decide that the marriage should be brought to an end, either you or your partner can issue a petition for divorce in the court.

It’s not possible to end your marriage simply by saying there are ‘irreconcilable differences’ – you need to prove that it has broken down irretrievably by relying on one of five grounds set out by the law. These are:

  • Adultery.
  • Unreasonable behaviour.
  • Two years’ separation with consent.
  • Five years’ separation.
  • Desertion.

So the only ‘no fault divorce’ is based on two years’ separation with consent, or five years’ separation.

You may feel that you cannot move on with your lives until you are divorced. Also, if you want to have a final financial agreement (or to ask the court to make a decision about finances) then there would have to be divorce proceedings underway.

If you have to rely on the ground of unreasonable behaviour, try and keep matters amicable by attempting to agree to the wording of the particulars of behaviour with your partner. The allegations could be kept as mild as possible.

2) How can you make it easier on your children?

Sit down and explain the situation to your children in language they can understand. Reassure them that you’ll continue to be their parents, and that they should not feel that they are in any way to blame for the separation.

Try to agree where your children will live, and how often they will see the other parent. Sometimes a shared care arrangement can be put in place.

The idea is to decide what works for you as parents, and what’s in your children’s best interests. No two families are the same so what works for one family may not work for you.

There are other factors such as work, child care and so on to factor in. The more you can agree on, the better. Also bear in mind that there needs to be flexibility. What works for your children when they are young may not work as they get older and as their commitments with school and friends changes.

If you agree the arrangements, there is nothing else you need to do – the  court doesn’t need to approve them. You can record what you’ve agreed in a parenting plan which can help set out your expectations regarding the arrangements.

Advice from a relationship coach

Relationship coach Danielle Barbereau has the following advice to help minimise the impact of your divorce on your children:

  • Divorce is difficult for children. Do not use them as pawns or messengers. Never make them take sides, no matter how you feel about their father or mother. (This applies to children of all ages, including adult children.)
  • When children are young, they are likely to feel that the divorce is their fault. It is absolutely essential to reassure them that it is not the case and this comes before your own needs, at all times.
  • It’s okay to show sadness, but remember who is the adult and who is the child and behave accordingly. Not doing so does not attract any respect from anyone; neither will it solve anything, but it is sure to stress the child.
  • Even if teenagers look (and think they are) grown up, they are still children and you are responsible for their welfare, not the other way round. Always remember that children are the innocent party.
  • Keep the high ground, and make sure that you speak of your former partner with respect and facilitate access and contact (this does not apply if there has been domestic or sexual abuse, or if you have definite knowledge that your children are frightened of them).
  • Work on your self-esteem, learn to steady yourself when you feel upset (a relationship coach can help you through the worst).
  • Answer all your children’s questions according to their age.
  • And finally for you – retain a sense of gratitude and fun, don’t jump into another relationship and trust that the bad times will pass.

You can read more tips on how to handle children when you’re getting divorced here.

3) How should you separate your finances?

During your marriage you may have acquired assets such as a house, pension or savings. And when you separate, these assets are usually divided up.

The most stress-free way of dealing with matters is to agree between you who will have what. If you can’t then you may need someone to help you reach an agreement, such as a mediator or a specialist family solicitor.

There’s nothing set in stone stating who should have what, but generally speaking the longer the marriage, the more the law looks towards an equal division.

If you reach an agreement directly between yourselves or with the help of a mediator or solicitor, it’s a good idea to put the agreement in writing. This is called a Consent Order and once it has been approved by the court, there’s no going back on it (except in very rare circumstances). It finalises financial claims. Divorce itself does not end financial claims.

What if you can’t agree on a financial split?

If you are unable to agree, then you can ask a judge to decide. This is when it can become more costly. The judge will want to know what everything is worth (the value of the house, pension, business etc). Once all the figures are known, the judge will help you to negotiate a settlement.

Even when the court is involved, there is an emphasis on encouraging the couple to settle. Ultimately the judge can make a decision at a final hearing.

How to divide up your assets

So what things should you consider after you split up and are trying to divide assets? Start by making a list of what you’ve got, both jointly and in your sole names.

You should also take into account debt you have and decide whether this is ‘marital debt’ (debt you have accrued jointly during the marriage).

Try to agree on a value for the house and work out what is outstanding on the mortgage (if you’re unsure of value of your home, you could ask a local estate agent for an informal market appraisal).

Pensions are more complex. The value of the pension pot is the starting point but this does not always accurately reflect what the pension is worth, so often a pension expert is required to give an opinion as to how the pension should be shared and, if there are multiple pensions, what’s the best way of sharing them.

And finally, there is the issue of income. The person with main care of the children is entitled to child maintenance, but may also be entitled to spousal maintenance if there is a difference in your incomes.

Using mediation or collaborative law

If you’re struggling to agree then you can try mediation or the collaborative law process. This helps open up the channels of communication and facilitate an agreement. Court is the last resort and should only be used if you are unable to agree.

Family mediation is a process of resolving legal issues in a non-adversarial way. You negotiate your own settlement with the assistance of a mediator. This is based on the assumption that a decision to separate and/or divorce has already been made.

Don’t confuse mediation with counselling or marriage guidance. The aim is to help you reach an agreement in relation to issues arising out of the breakdown of the relationship.

Collaborative law allows you to meet together with your respective solicitors to discuss things reasonably and come to decisions together around the table.

Meetings usually take place at the solicitor’s office but with sufficient notice alternatives can be arranged – perhaps at a more neutral place. In this environment any issues can be discussed and hopefully resolved with future plans and division of assets being talked through in a calm and reasonable way.

When should you get legal advice?

It can be a good idea to get advice at an early stage to help clarify the issues and point you in the direction of a settlement.

If you’ve had legal advice from a family solicitors shortly after separation, you may feel more able to reach an informed decision about the arrangements for the children and the division of the matrimonial assets.

(This San Rafael custody lawyer offers prospective clients a 15 minute free office or telephone consultation if you’re in California.)

Need more relationship advice?

You’ll find more expert advice on relationships, divorce and separation in these articles:

Angela Lally is a solicitor specialising in family law at Quality Solicitors SSB. For £99 they offer an Ask the Legal Expert appointment for initial advice. This can help you with the parts you really need help with, keeping legal involvement and costs to a minimum. You can also read their comprehensive guide to divorce here.