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Divorce: amicable or adversarial?

It was his fault; take him for all he has. She has worked at home for the past five years; you are going to have to fight to avoid giving her half of your income for the rest of your life. The property is in his name; you had better get it in yours. Spend now so you do not have to give up property later.

Chances are you have heard people make comments like these when discussing the topic of divorce. They are common, but people often base them on common misconceptions about divorce. Does every adversarial divorce have to be a knock-down drag-out battle? No. Does having an amicable divorce mean you don't have hurt feelings? No. Can spouses really walk away as friends? Yes.

People often use the terms that describe the legal process interchangeably with emotions. This is a mistake.

Let us explain the legal difference between adversarial and amicable or uncontested:

  • Divorce is an adversarial legal process: Divorce is a civil court process based on the theory of fault. One spouse files a complaint against the other alleging one of 11 statutory grounds for divorce. The other spouse responds. The judge rules on contested issues involving property or children. Thus, it is an adversarial process.
  • Dissolution is an amicable legal process: Dissolution involves a situation in which two spouses agree on all legal aspects of divorce, such as property division, child custody, child support and spousal maintenance. The couple presents their out-of-court agreement to the judge, who then approves the settlement.

Now, let us explain the practical application in relation to those emotions or feelings often confused with legal terms:

  • You can agree to disagree with your spouse in a divorce: Having varying opinions about important topics and fighting are two very different things. One is not a prerequisite for the other. Sometimes, you just need a judge to step in and determine a fair arrangement under the law. One spouse may feel disadvantaged in negotiations and prefer to have a judge take control. Other times, one side just won't budge.
  • You can agree and still feel hurt: You may appreciate the fact that the other spouse is a good parent and want them in your child's life even if they cheated on you or left you feeling alone. You may be okay with dividing a simple estate in half just so that you can walk away from the marriage faster, without spending a lot of money on attorney's fees.
You might be thinking at this point, "Is this all just talk?" The answer is no. In fact, CompleteCase.com found that Ohio is one of the "friendliest" divorce states, ranking ninth out of all 50 states. Data and personal stories support the claim.

First, we can point to hard numbers. Stark County is a few miles northeast of us, but their family court filings are telling. In 2013, the percentage split between divorce and dissolution filings was nearly 50/50, with 749 divorces and 635 disillusionments (dissolutions).

Next, we can listen to some personal stories. In 1997, one couple paid $400 to end their marriage of 30 years. They are still close friends. The ex-wife explained that their personalities simply had them heading in different directions. She was a "public person," enjoying numerous community gatherings and events. He was a bit more "reclusive," wanting to stay in.

Another couple explained that the reasons for their divorce were a little different. They felt that pain, hurt and other "raw" emotions many couples experience. The ex-husband explained that they had three children together and that he "didn't want them to suffer because of our issues." They had an amicable divorce and he is "happy" as friends today.

Every divorce is unique. Yours can be what you make it, just make sure that you have done your research. Make sure you get experienced advice from an attorney. If civil divorce is your goal, make sure you meet with an attorney who is willing to follow your lead.

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