Legal Law

5 things divorcing parents need to know

When you had your child or children, your life changed from focusing on yourself to suddenly having to consider how all of your life choices would affect the children. That’s the way it should be. What is in the best interest of the child should always be the parents’ top priority, especially when considering divorce. The first thing you need to know is that our adversarial legal system is not focused on children or families. The emotional and financial price you pay when you each hire separate divorce attorneys is higher than you can now imagine.

Before I became a divorce attorney, I was a special education teacher. My Masters is in Special Education, focusing on teaching severely emotionally disturbed children, so I came to law with a powerful bias to act only in the best interests of children. The second important fact to know is how comfortable many divorce attorneys feel spending their client’s college fund instead of quickly and cheaply helping the couple negotiate a fair deal. After 8 years of litigation and witnessing the utter financial and emotional devastation of too many families, I vowed not to accept any more contested divorces and only do divorce mediation. Over the next 3 years, after working with over 150 couples with a 100% success rate, I am convinced that divorce mediation should be the first resort solution for 85% of couples contemplating divorce. So the third thing to know is that there is an alternative to divorce court, mediation.

It is easier to deal with a situation when the basic information is already known. In the 8 community property states (Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin) the property division is quite clear. Anything owned wholly before the marriage or received by gift or inheritance is separate property that passes to the spouse who owns it. If it was partially paid for with the use of wages or income earned during the marriage, the “community” earns an interest in it that can be calculated. The division of property in community property estates is one of the easiest topics to deal with because it is so clear. But what about the other 42 states? These states use an equitable distribution system to divide marital property. Each state has its own rules that can be determined before starting the divorce process. So there is some uncertainty in non-community property states, but an experienced attorney/mediator generally knows what the court will do in most situations and can be a valuable guide for couples unfamiliar with the laws. . The fourth thing to keep in mind is that there is no point in fighting over property division. You can protect your co-parenting relationship and end up with more property if you divide everything the way a neutral third party (mediator) suggests.

In contested divorce cases, child custody and visitation issues can be the most contentious and emotional. If the parents can reach a custody agreement, which they eventually do in 90% of custody cases, they can avoid court altogether. Why should a couple wait until they’re on the courthouse steps to make a deal? Only 10% of custody cases are litigated. A couple could always seek the services of a child therapist for advice instead of going to court. Courts generally apply a “best interest of the child” standard to determine who should get primary custody. Wouldn’t parents themselves be in the best position to decide how their children should be raised? When a couple works together in mediation, they are in control of the end result, not the lawyers or the judges. When couples intend to co-parent effectively with the best interests of the child always in mind, they will produce a much more satisfying outcome than if a solution is imposed on them from above. Child custody issues are the most inappropriate issues to be decided within an adversarial system. The win/lose game played in court always creates tension between parents. Not only will this stress negatively affect the health and happiness of the parents, but the children will find themselves caught in the middle of a battle, dodging verbal and emotional bullets that fly overhead. The adversarial system does not protect the coparenting relationship of the parents and should be avoided as much as possible. An emotionally vulnerable client in the hands of a “zealous advocate” who is more concerned with enriching himself than helping her client is a dangerous combination. The last thing she needs to keep in mind is that avoiding divorce attorneys and the court should be her number one priority if she wants to protect her health, spirit, co-parenting relationship, and pocketbook.

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