Amicable Divorce: Mediation, Collaborative Law and Annulment

An amicable divorce is one where both spouses settle every issue themselves, with or without help, and the court only approves the agreement. The three common ways to get there are working it out directly, using a mediator, or a collaborative divorce where each spouse has a lawyer who agrees not to go to court. It's usually faster and cheaper than a contested case, and you keep control of the outcome.

Approach	Who's involved	If talks break down	Typical fit
Kitchen-table agreement	The two of you, maybe one lawyer to draft	You can still mediate or go to court	Short marriage, few assets, no conflict
Mediation	A neutral mediator; lawyers optional	Each side can go to court	Most issues agreed, some to work out
Collaborative divorce	Each spouse's lawyer, sometimes a financial neutral or coach	The collaborative lawyers withdraw; new lawyers for court	More assets or children, and both want to stay out of court
Negotiated settlement	Each spouse's own lawyer	The same lawyers can go to court	More complex finances, less trust

The labels and rules vary by state. Several states have adopted a collaborative law act that sets out how the process and the lawyers' withdrawal work.

Estimate the cost

An amicable divorce still has costs: court fees, a mediator, and often a lawyer to review the final agreement.

The defaults show 5 hours at $300 and $400 in court costs, $1,900 in all. For mediation, put the mediator's rate and expected hours in the first two fields, then add each side's lawyer review as a flat fee.

Can one lawyer handle it for both of us?

Usually not. A lawyer owes loyalty to one client, and in a divorce the spouses' interests conflict on money and children, which is a problem under ABA Model Rule 1.7 as adopted in each state. A common setup is one spouse hiring a lawyer to draft the agreement while the other has it reviewed by their own lawyer or signs knowing they're unrepresented.

A mediator is different. A lawyer acting as a mediator serves as a neutral and has to make clear to unrepresented parties that they aren't being represented (Model Rule 2.4). The mediator can't give either of you legal advice.

Annulment and divorce: the difference

A divorce ends a valid marriage. An annulment is a court ruling that the marriage was never valid, or could be undone, because of a problem that existed at the start. The grounds are set by each state and often include:

• one spouse was still married to someone else;
• one spouse was under the legal age and didn't have the required consent;
• fraud about something essential to the marriage;
• the spouses are closely related.

An annulment is not a shortcut when the marriage was short. If none of your state's grounds apply, the path is a divorce, which can still be quick and amicable when you agree.

Who gets the house

The house is often the biggest asset and the hardest piece to settle. In community property states, a house bought during the marriage is generally owned equally; elsewhere, courts divide it in a way they find fair (see high net worth divorce for the property rules). Couples usually choose one of three paths: sell it and split the proceeds, have one spouse buy out the other's share, or keep it together for a while, often until the children finish school.

With the defaults, a $400,000 house with $250,000 owed has $150,000 in equity, so a buyout of a 50% share is $75,000. Selling at 6% in costs would leave $126,000 to split, or $63,000 each. A court can also delay a sale: in California, a deferred sale of home order can give a custodial parent temporary use of the home to limit the effect on the children, after the court checks that the payments can be kept up (Family Code §§ 3800–3802).

Taxes matter later. When the house is sold, each owner can usually exclude up to $250,000 of gain if they owned and lived in it for two of the last five years, and federal law counts the time a former spouse lives there under the divorce decree as use by the other owner too (26 U.S.C. § 121(a), (b) and (d)(3)(B)).

Keeping it amicable

1. Make a list of every asset and debt together before you negotiate.
2. Agree on a parenting plan before money, if you have children.
3. Put each agreement in writing as you go.
4. Have the final agreement reviewed before you sign, especially for retirement accounts.
5. Ask the court clerk or self-help center which forms and waiting periods apply. Our cheap divorce guide lists the low-cost routes.