Unbeknownst to many divorcing couples, it is possible to have a one-attorney no-court divorce, which is the most affordable divorce.
If done properly, such one-attorney divorces are also fair and reasonable, and enforceable.
Kitchen Table Divorce Utilizing a Neutral Mediator
A “kitchen table divorce,” or “Starbucks divorce,” happens when a couple negotiates their own settlement terms for divorce (over the kitchen table or at Starbucks) without any attorney involved, and then an attorney is retained to draft the separation agreement or marital settlement agreement.
In my opinion, the best way to do such a kitchen table divorce is for the couple, after their private negotiations, to go together and retain a divorce attorney to serve as a neutral mediator, who will then draft the settlement agreement. Each spouse is likely to trust the attorney if they meet and retain the attorney together, and then discuss with the attorney the agreed upon settlement terms.
When the attorney serves as a neutral mediator, he/she represents neither party, but rather remains neutral to facilitate a dialogue between the couple to help them finalize a settlement. The neutral mediator is in a position to share his/her thoughts about the settlement terms, so as to best meet the needs and interests of the couple and their children.
After the mediator drafts the settlement agreement, and before it’s signed, the mediator reminds the couple that they each have the right to consult with their own separate review attorney before signing the agreement. Sometimes the spouses avail themselves of that right, and sometimes they don’t. Once the agreement is in final form, it is signed and duly acknowledged before a notary public.
If the couple wishes to proceed with an uncontested divorce, then the next step is to have an attorney prepare the uncontested divorce papers. The same attorney who served as the neutral mediator can also prepare the uncontested divorce papers as the attorney for one of the spouses, in order to minimize conflict and save on legal fees.
For the mediator to “switch hats” and act as an attorney, ethical standards call for both spouses and the attorney to agree – in writing – that said attorney shall represent one spouse, the other spouse shall represent himself/herself or obtain another attorney, and the uncontested divorce papers will be entirely consistent with the terms of the settlement agreement.
Enforceability
If done properly, a one-attorney no-court divorce settlement is not only very affordable (because only one attorney is involved and it typically takes only a few hours of an attorney’s time), but it is also enforceable. New York divorce laws are helpful in achieving such enforceability.
Let’s say a divorcing couple has children and substantial assets and income. Very often, the key issues are custody and visitation, division of marital assets, maintenance (alimony) and child support.
If the couple is in agreement regarding custody and visitation, then they can be well on their way to settlement. Why is that?
In many cases – not all – the marital assets are equally divided between the parties. With a little guidance from their mediator, the couple can often determine which of their assets are marital assets, and then the marital assets are equally divided, and each party keeps his/her separate property assets. To determine the value of a marital asset, the mediator can recommend one neutral appraiser or valuation expert to determine the value.
What about maintenance (alimony) and child support? In New York State we now have statutory guidelines with respect to maintenance and child support. In most cases – not all – the guidelines are applied to determine the amount and duration of maintenance, the amount of basic child support, and each party’s share of the child support add-on expenses.
It would be very unusual for the court to determine that a divorce settlement is unenforceable if the marital assets are divided equally and the support guidelines are applied to determine maintenance and child support.
It is also well settled in New York law that even if a divorce settlement is “improvident” or unwise, it is still enforceable, provided it is not “unconscionable” or “would shock the conscience of the Court.”
Enforceability is also achieved once the settlement agreement is executed, and each party has received substantial benefits under the agreement. When that happens, the agreement is ratified. Ratification is a defense in a legal proceeding seeking the rescission of a marital settlement agreement.
Kitchen Table Divorce Utilizing One Attorney Representing One Spouse
Let’s say the couple reaches a meeting of the minds for a divorce settlement but only one of them is willing to meet an attorney to prepare the necessary legal papers. Unbeknownst to many people, such a divorce, if done properly, is enforceable under New York law.
Instead of the attorney serving as the neutral mediator, he/she can represent the spouse who comes in to retain him/her, with the understanding that the other spouse is “pro se,” meaning he/she represents himself/ herself. The same things mentioned above apply to make this type of divorce proper and enforceable. For it to be done ethically, if and when the attorney communicates with the other spouse, such spouse should be reminded that he/she is representing himself/herself, and has the right to obtain his/her own counsel.
© Arnold D. Cribari 2018
