3 Things You Must Consider When Filing for Divorce with Kids

By: Allison Burgess Brandt, LMFT
November 30, 2016

1. Research the differences between mediation, collaborative law, and litigation

Filing for divorce is a monumental decision. There are new and improved ways of handling a divorce filing, and it’s up to you to research the various ways to dissolve your marriage in a way that makes sense for you and your family.

For example, many people I work with don’t understand mediation, and think it means a couple has to compromise, or that it only works for those couples whose divorces are amicable and whose assets are easily divided. Not true! Others believe litigation is the only way to go, not realizing there are other potentially less aggressive (and less expensive) alternatives that would work better for their situation. One emerging field is collaborative law, which can be seen as a middle ground. What follows is a basic overview of these three alternatives that should get you started (please note, these are oversimplified explanations and may not apply to all professionals and/or situations).

Mediation 

In a nutshell, you can hire a divorce mediator (who may or may not be a lawyer). There are no governing bodies or licensing boards for mediation, so your neighbor could hypothetically mediate your divorce. The purpose of mediation is to collaboratively reach an agreement on ALL areas of a divorce petition, with the goal of avoiding court. Once an agreement is reached, the mediator will advise each party to have an attorney review and prepare the document for court filing. Mediators are generally considered less expensive than attorneys, although if/when situations become contentious or difficult, you run the risk of needing to hire a lawyer or therapist anyway.

Collaborative Law 

There are also collaborative lawyers and “collaboration-friendly” attorneys. This is the “new breed” of family law and becoming increasingly popular for its collaborative style and intent to avoid litigation (and unnecessary legal costs). These professionals essentially work as mediators, but they specialize in family law and the court system and will be the ones filing the agreement with the court directly. If negotiations go south, some attorneys will offer litigation services; some firms do not provide litigation, so you’ll need to ask your legal professional.

Litigation 

Finally, litigators are best equipped for those with complicated financial situations, or contentious and/or potentially high-conflict situations. Litigators are generally viewed as the most expensive way to go, although there are exceptions to every rule.

2. Get a therapist or counselor

No matter how amicable your situation, the strain of the divorce process can wreak havoc on your mental health. And if you have kids, they deserve to have things as balanced and calm as humanly possible, so do everyone a favor and find someone sooner rather than later with whom you can vent, strategize, and develop effective coping skills.

More and more attorneys are referring clients to therapy to assist them with the emotional side of the process; as one family litigator said to me, “I wish I could tell my clients to keep their ‘business hat’ on during our conversations, and that they need to go cry to their therapists!” Lawyers do not specialize in processing feelings around divorce (although many are happy to listen to you talk at their hourly rate!). You are paying lawyers for their legal expertise. Period.

3. Consider hiring a mediation therapist

If you have children, finalizing child custody arrangements and developing a time-share schedule and a co-parenting plan can be incredibly stressful and time-consuming. While your mediator and/or attorney would probably be happy to charge you their hourly rate to help with your daily schedule, vacations, and co-parenting agreements, it is not their specialty, and many will refer their clients to mediation therapists for this piece of the process.

Known alternatively (and confusingly) as Divorce Therapists, Parenting Plan Coordinators, Co-Parent Educators, Divorce Coach Family Mediators, Psychotherapists, and Counselors, these professionals offer services ranging anywhere from calculating child custody and performing child custody evaluations to creating a standard weekly time-share/vacation/holiday schedule and (importantly) developing effective co-parenting plans.

For example, one couple I worked with came to see me because they were having trouble agreeing on a standard weekly schedule. The father proposed having the children every other weekend and 1-2 overnights a week; since he worked, he would have a babysitter pick them up after school on those extra 1-2 days a week, with the plan that he would be home around 6:30pm. The mother felt it was disruptive for the kids to be picked up by a sitter on those evenings and was unwilling to agree to this arrangement, and their conversation stalled out. In session, I helped the mother articulate her reasons UNDERNEATH her reluctance: it turns out she was trying to find a way to keep the kids’ schedule consistent each day because she was worried about their anxiety issues (for which they were already receiving treatment). The father agreed that the kids’ anxiety was a real issue, and didn’t realize this was the mom’s underlying concern.

With these disclosures out in the open, I worked with the couple to come up with a new arrangement: it was decided that the kids would come home with Mom after school every afternoon, and would be the established routine for the kids, and then the kids would be picked up by Dad or a sitter at 6:00 p.m. 1-2 nights a week. This schedule satisfied both the needs of the dad to have that extra time with his children and mom’s desire for consistency. This is a solution that a judge would never take the time to consider, and resulted in both parties being heard and understood, leading to better overall communication and goodwill between them.

These are just a few of the many considerations you and your partner will need to make during the divorce process. Hopefully, these basic principles will help you ask the right questions of your divorce professional to make what can be a painful and confusing process a little less complicated, and help you think outside the box to find tailor-made solutions for the needs of your family.