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5 Things Divorcing Parents Should Know
When you have your child or children, your life changes from being self-centered to suddenly having to think about how all of your life choices will affect the children. That’s how it should be. The best interests of the child should always be a parent’s top priority, especially when considering divorce. The first thing you need to know is that our adversarial legal system is not child-centered or family-friendly. The emotional and financial cost you pay when you hire an independent attorney for every divorce is more than you can imagine.
Before becoming 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 strong bias to work only in the best interests of children. Another important fact to know is how comfortable many divorce attorneys are with spending their clients’ college funds, instead helping the couple quickly and financially reach a reasonable settlement. After 8 years of litigation and witnessing the total financial and emotional devastation of many families I have vowed to no longer do adversarial divorces and only mediate divorces. Over the next 3 years, after working with over 150 couples with 100% success, I am convinced that divorce mediation should be the first solution for 85% of couples considering divorce. So the 3rd thing you need to know is that there is an alternative to divorce court, mediation.
Situations are easier to deal with when the basic information is already known. Property division is very clear in the 8 community property states (Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin). Property that was owned outright before marriage or received as a gift or inheritance is separate property that passes to the spouse who owns it. If wages or income earned during the marriage are paid in part for use, the “community” receives an interest in it that can be calculated. Dividing property in community property states is one of the easiest issues to deal with because it is so straightforward. 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 usually 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 remember is that there is no point in fighting over property division. You can protect your co-parenting relationship and get more assets if you divide everything according to the instructions of a neutral third party (arbitrator).
In litigious divorce cases, child custody and visitation issues can be the most contentious and emotional. If parents can agree to a custody arrangement, which they eventually do in 90% of custody cases, they can avoid court altogether. Why should a couple wait until they get to the courthouse to make an agreement? Only 10% of custody cases are prosecuted. A couple can always seek the services of a child therapist to advise them instead of going to court. Courts generally apply the “best interests of the child” standard to determine who should receive primary custody. Aren’t parents themselves in the best position to decide how to raise their children? When a couple works together in mediation, they control the final outcome, not the attorney or judge. When the couple intends to co-parent effectively with the best interests of the child always at the forefront of their mind, it produces a more satisfactory outcome than when solutions are imposed on them from above. Child custody issues are among the most inappropriate issues to be decided in an adversarial system. The win/lose game played on the court always creates tension between parents. Not only will this stress negatively affect the health and happiness of parents, but children will be verbally and emotionally shot as they fly over their heads. The adversarial system does not protect the parent’s co-parenting relationship and should be avoided if possible. An emotionally vulnerable client in the hands of a “zealous lawyer” who is more concerned with enriching himself than helping his client is a dangerous combination. The last thing to remember is that avoiding divorce lawyers and courts should be the #1 priority if you want to protect your health, soul, co-parenting relationship, and pocketbook.
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