Going through a divorce is necessarily a fight between two people, isn’t it? Probably nine out 10 people would answer “yes” to that question. Marriage is commonly held to be a sacred trust between the two parties, rooted in emotion and involving one’s innermost feelings. It seems only natural that once the marriage relationship breaks down, feelings of anger, spite, and even retribution kick in.
These attributes of marriage and divorce certainly fit the stereotypical views of our society. Marriages that fail because of infidelity or other hurtful behavior by one spouse or the other are likely to be hotly contested. Also, married couples with children or complex financial issues may approach dissolution in an adversarial manner.
In today’s society, however, it is not uncommon for some married couples to just want to go their own ways. Divorce no longer carries such a stigma that couples stay married when they would rather not. Consequently, many couples divorce before having children, becoming entangled financially, or finding themselves in other circumstances that can lead to long-term life change.
In some states, couples who want to end their marriages amicably may file a joint petition for divorce. In this situation, the couple file a petition with the court, signed by both parties, accompanied by a settlement agreement. The agreement spells out all the legal issues involved in divorce and how the parties want to resolve those issues.
The typical issues to be resolved are these:
- Division of marital assets and debts;
- Spousal support (alimony), if any;
- Child custody (if children are involved); and
- Child support (if children are involved).
In many joint petition situations, all that is involved is the division of marital assets and an agreement that there will be spousal support of a particular amount and duration or that such support is waived by both parties. That is not to say that couples with children or complex financial holdings cannot file a joint petition, it is just less likely to occur in those situations.
The court will consider the petition and, particularly, the parties’ agreement before issuing a final decree dissolving the marriage. The court’s job is to make sure the parties are each treated fairly in the agreement and that both are agreeing of their own free will. The judge will look for any imbalance in the bargaining power of the parties that might indicate one party is being coerced into agreement. Most courts will hold a hearing during which the judge will inquire of the parties as to their views on each issue being resolved.
What happens if children are involved?
If children are involved, the court will be particularly diligent to ensure that the agreement’s treatment of custody and support are proper. Most states have strict guidelines for the establishment of child support amounts. In addition, most states favor joint custody of children. Any agreement that is outside child support formulas will likely not be approved by the judge. Where custody is concerned, courts will look closely at the terms of the agreement as compared to each party’s ability to provide proper parenting. In all cases, a court will assess an agreement’s treatment of these issues on the basis of the child’s best interest.
Amicable joint divorce
Couples who want to pursue an amicable divorce jointly may do so on their own without the assistance of counsel. In such a case, a court will be more diligent to ensure the parties, in effect, understand what they are doing.
Most couples filing joint petitions hire individual lawyers to represent their interests. This allows the lawyers to negotiate with one another rather than the parties negotiating with each other. Courts generally favor this approach because that takes some of the responsibility off of the court to make sure the agreement treats the parties fairly and in accordance with the established law.
A joint petition is not for every couple who wants to divorce. It is best to be realistic up front as to whether there are truly no areas of disagreement. Sometimes, a party may be overly optimistic about the other party’s views on certain issues. Engaging individual counsel is the best way to assess whether a joint petition is the best approach for you. Be sure to hire a lawyer who is licensed in your state to obtain legal advice.