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How to Have a Collaborative Divorce When Kids Are Involved

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When most people hear the words “divorce proceedings,” it conjures up scary images of impersonal court rooms and the airing of the marriage’s dirty laundry in court.  When children are involved, words you never thought would impact you — alienation, abandonment, abuse — all of a sudden are rolling off tongues. Before you walk the walk, are there steps you can take to help make a “compassionate divorce” happen? Maybe. Here are some approaches to consider.

Is collaborative law or mediation right for you?

Just like the name states, collaborative law allows separating couples to work together, with their attorneys, instead of against each other.  This approach allows parties to decide what will work best for their family’s needs, instead of a judge making these decisions for them. Of course, both parties have to want to work together and, often, it is up to their selected attorney to keep them on track when seemingly impossible disputes arise. Attorneys working in a collaborative divorce try to create solutions that work for both parties’ needs while continuing to be an advocate for their respective client.  In addition to the emotional benefit that many families find in using the collaborative process, private financial information of the parties will be kept out of public court records. Check with your state to determine whether there are certifications for collaborative law and that your attorney has met those requirements. Not only is collaborative law not right for every family, but it is also not right for every attorney.

Mediation involves using a neutral third-party to help parties negotiate an agreement in a confidential and private setting. The mediator is to bridge the gap between the parties’ positions to reach a solution. A mediator does not make decisions and cannot give you legal advice. Find a certified mediator, ideally with extensive experience in family law in your jurisdiction. Often, the best mediators are experienced attorneys who can help you understand the risks and benefits of the issues based on their own knowledge of the law. A successful mediation results in an agreement that is prepared by an attorney that represents either party.

In the courtroom or out, the issue of Child Custody is often hotly disputed during divorce. No matter your parental role prior to separation, sometimes moms become "super moms" and dads become "super dads," sometimes because they have been coached for case-building in the custody discussion, or because they simply recognize that they can now focus on their children and not their relationship with the other parent. Understanding the terms used in resolving the custody issue is a great first start to having a compassionate divorce, as it tends to eliminates fears you never thought you would have – allowing for more of a custody discussion, rather than a custody battle.

Understanding Child Custody

Do you know the difference between legal and physical custody? Come to the table with your children’s routines, academics, medical history and more. Though there is no assumption that one parent is better than the other, having the right information and understanding the “language” so you can identify goals will be helpful. Remember, every state has its own set of laws, but know the difference between legal custody and physical custody.

Legal Custody

Legal custody refers to the ability to make major decisions for the children on issues such as education and healthcare. If someone is seeking Legal Custody, they may be requesting the authority to make major decisions. This does not cut you out of the parenting equation. Instead, it may be that the parent requesting legal custody just wants the flexibility to make decisions without having to consult the other parent each time.

Physical Custody

Essentially, physical custody refers to the parenting schedule. While some states have specific rules, others look to the children’s existing routines or creating equal opportunities for both parents (despite any roles that may have existed before separation). Parenting schedules are more commonly referred to as “visitation” but using the terms “parenting schedule” has been found to be less intimidating when trying to have a compassionate divorce.

When considering all of these issues, first listen to what the other spouse wants and determine whether there is an alignment before you jump to any conclusions. If it was an ideal world, what would you want to see as the outcome of these divorce proceedings? Your first conversation with your family lawyer should be about setting your goals and expectations. Figure out if what you want is reasonable - and know that if your attorney tells you that you will get everything you want then you should run in the other direction. No one said this was going to be easy, but it can be resolved if you use the approach that works best for your family. What constitutes a compassionate divorce for you, and for your children, may not be what you expected (or even wanted) but can still be a healthy resolution.

This post was written by family law attorney <a target="blank" href="https://twitter.com/NSodoma">Nicole Sodoma, the Managing Principal of Sodoma Law, P.C., based in Charlotte, North Carolina. The firm's areas of practice include Family Law, Adoption, Surrogacy, Employment Law, Business Law, and Trusts and Estates._

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