How Does a Divorce With Kids Work?

Some of the issues you'll discuss with your family law attorney include:

• Child custody arrangements
• Child support
• Parenting plans
• Allocation of parenting time
• Visitation rights
• Health care
• Parental rights

Ideally, you and your spouse will work together when making significant decisions about the health and welfare of your children. There's no reason your dissolution of marriage should impact your kids any more than necessary.

This article explains how most divorce cases involving children work. We'll also discuss legal issues you'll encounter when dealing with the above problems.

Divorce and the Best-Interests-of-the-Child Standard

The divorce process can get ugly when parents use their kids as pawns or attack each other to gain sole physical custody. Character witnesses, testimonials, text messages, and social media posts are fair game in contentious family law cases. Some will stop at nothing to prove their ex is an unfit parent.

Ultimately, the family court judge will do their best to negotiate joint physical custody of your children. They'll consider how you and your spouse allocated parental responsibilities during the marriage and whether this needs to change after the divorce. Their primary concern is the well-being of your kids. They won't tolerate inappropriate behavior from either party about custody issues.

Many courts will look for ways to grant parents shared legal custody unless there are good reasons not to. They will consider what is in your child's best interests. If you and your spouse work together with the same goal, you can resolve your custody case quickly and do less harm to your minor children.

What Factors Does a Judge Use To Determine Custody?

Judges favor joint custody arrangements over a single custodial parent, where appropriate. They look at what situation will benefit the well-being of the child. Child custody laws vary by state, but judges consider evidence in these areas to determine what is in a child's best interest:

• Parents: Mental and physical health of the parents, ability to provide a stable home environment, any evidence of parental unfitness (excessive discipline, domestic abuse, parental substance abuse, child abuse). The sex of the parent is not a factor in decision-making.
• Parent-Child Relationship: Child's bond with each parent, parental involvement in the child's life
• Child: Child's age, the wishes of the child if they are old enough to express a reasonable preference
• Family: Support and opportunity for interaction with extended family members and other household members. States emphasize more or less the value of the grandparent-grandchild relationship. See a summary of state laws on grandparent visitation.
• Environment: Adjustment to school and community, religious and cultural considerations

Other factors may also be relevant when determining the child's best interest. Child custody disputes have brought up a parent's smoking status, current romantic relationships, and past work habits.

Parents should remember that dragging out a court battle drains the financial resources they need for this next phase of life. Arriving at a satisfactory compromise about who gets custody, even if not ideal, may be in everyone's best interest.

Divorcing With Kids: The Process

Here is a general overview of how a divorce with kids works. Note that each state has different processes and uses different terminology for child custody and visitation.

1. Divorce Filing

When you file your divorce case, you must address child custody and child support. Spell out your expectations about custody and support and file the necessary custody forms.

2. Emergency Orders

If you fear your spouse may harm your children during the divorce proceedings or after the divorce becomes final, tell the judge. They may be able to issue a temporary order of protection.

3. Divorce Settlement Agreement

If you and your soon-to-be ex decide the issues of child custody, include it as part of your divorce settlement agreement and ask the judge to approve it. Once the judge confirms that your decision-making process involves the best interests of your children, they should approve it.

Your settlement agreement should contain provisions for the following issues:

• Education, including the school and any extracurricular activities
• State which party will be the non-custodial parent
• Where the child lives during the week, weekends, and holidays
• Whether the custodial parent will live in the marital property until the kids graduate from school
• How the parties will divide holidays and vacation time

4. Mediation

Some states and counties require parents to attend mediation for child custody and visitation. You and your spouse will meet with a neutral mediator to help you agree on the above issues.

5. Court Hearings

If mediation is unsuccessful or you live in a jurisdiction that doesn't require it, your case will go to a hearing in front of a judge. You will each have a chance to present your side. The judge may ask mental health experts to weigh what is best for your child and appoint a guardian ad litem to represent your child's interests.

You may have to attend many hearings to resolve child custody and support issues. In such cases, the judge may order temporary support and custody orders pending the final custody decision.

6. Divorce Order/Decree

The judge will decide on your divorce, including orders for:

• Custody
• Parenting time and visitation
• Child support

7. Appeals and Changes to the Divorce Decree

You can appeal their decision if you disagree with the judge's court order. Similarly, if any substantial changes in your life affect custody or child support, you can ask the court to change the order by filing a motion to modify child support or custody.

Can I Get an Uncontested Divorce If I Have Kids?

You can get an uncontested divorce with children if you and your ex-partner both agree on the following:

• Physical custody (typically 50/50)
• Parenting time
• Parental responsibilities
• Decisions about schooling, health care, religion, etc.
• Child support payments and payment schedule

You must also agree on all other divorce issues, such as property division, division of bank accounts, and alimony.

Agreeing on these topics during such a difficult time takes work. It may take some unofficial negotiations to reach an agreement. Once you agree, you can avoid mediation and trial and proceed to a final divorce hearing. This will help move your divorce case along and keep attorney fees minimal.

Because there are so many details to consider in child custody, many people choose to have their divorce lawyers review their divorce agreement before they submit it to the court. This is limited-scope representation.

Can I Appeal Court Orders If I Have Kids?

Most judges are open to hearing appeals on child support amounts, changes to your financial situation, unsafe home situations, or seeking more or less time with your kids. An attorney can guide you on the best way to approach these matters and the likely outcome for your situation.

It's hard to predict what life will be like post-divorce, so it is common for parents to re-negotiate child support and custody as their lives change. An agreement that made sense for your preschooler will probably need to change when they turn 16, want a car, and need car insurance.

Your Children and Divorce: Putting Them First

Research shows that the divorce process does affect kids. Even if you do your best to shield them from the divorce proceedings, this is a significant change for them, and they will sense your emotions.

Divorce might separate your child from their friends, force them to change schools, or make them think negatively about one parent or the other. It might reduce the time and attention each parent can provide.

An experienced divorce lawyer can give you the legal advice to help your kids transition to their new lives. The judge's job is to ensure your child's best interests are top of mind for everyone.

While the change is dramatic, you can work toward a smoother transition for your children and still protect your legal rights as a parent. Here are some things to keep in mind:

1. Judges Focus on Children When Deciding Custody

The judge's role in a divorce involving children is to determine what is in the child's best interests. The judge will likely consider your child's needs above your own about the following:

• Keeping the family unit together for siblings, half-siblings, stepsiblings, adopted siblings, etc.
• Assigning a co-parenting or child custody schedule favors one parent over the other. Most courts presume 50/50 child custody is best.
• Ordering a higher or lower child support amount than you predicted
• Reconsidering custody or financial orders if you or your ex-spouse remarry or have other children
• Choosing the most stable environment between two homes
• Minimizing the changes your kids will have to endure

2. Consider Keeping Your Kids Out of Court

Your children may hear about various stressors if they attend family court hearings. These can include:

• Addiction
• Cheating and infidelity
• Crimes
• Fraud
• Domestic violence
• Financial issues

Children old enough to understand these topics may need to talk with you before you all attend court.

The effects of divorce are unique to each family, so the process could take extra time or require professionals to speak with your children.

Most people live in no-fault divorce states, so it's unlikely that the judge will ask your child to testify. But, if it is relevant to the case, you can ask your child to speak, or a judge could order them to testify. This is rare but may happen if there are harassment problems or abuse.

3. Consider Divorce Mediation

Divorcing parents may want to consider methods like mediation or alternative dispute resolution (ADR) to help soften the process, soothe difficult topics, and help ease the transition for children. 

Divorce mediation can be helpful if you and your ex-spouse can work together. Mediation is particularly helpful in resolving conflicts over child custody. Divorce mediation allows the parties to negotiate the terms of their divorce together. The mediator ensures both parties cover all aspects of the divorce, including property division and spousal support or alimony.

Divorce mediation is less expensive and faster than a traditional divorce. You may not have to step foot inside a courtroom. The sooner your divorce is final, the faster everyone can settle into your new lives and routines.

4. Children May Be Able to Share Their Custody Preferences

Sometimes, the court will directly involve your children in the divorce proceedings. This varies depending on the child's age and state.

Some states allow children as young as 12 to say which parent they want to live with. Many courts will let even young children offer an opinion on custody questions. This often happens in a private conference with the judge rather than in a large courtroom.

Older children might be able to voice their opinions, and judges in many states will consider their wishes — unless they put the child in danger.

State laws and specific judges vary significantly on the age at which a child can provide input. For example:

• California courts let children over 13 explain with whom they want to live.
• Washington does not let minors offer their opinion unless the judge requests it.
• Wyoming allows judges to consider the wishes of children ages 12 and up.

Speaking to a judge can feel scary for a child, but court advocates work to make the experience calming and allow the child to share honest feelings.

5. Cooperate With Your Ex-Spouse

Take steps to ensure an atmosphere of cooperation with your ex-spouse. Often divorcing parents hope the divorce will more or less rid them of their ex. When you have children, that is rarely the case.

Divorced parents must work together until their children reach the age of majority (usually 18) and possibly beyond. Cooperation is essential to easing the strain of divorce on children and will help keep you out of court in the future.

Allow for fair custody and visitation rights. Avoid setting limits or rules for your ex-spouse that you cannot follow. Remember, there are no real winners or losers when your children are involved.

6. Avoid Criticizing Your Ex-Spouse

Refrain from talking poorly about the other parent in your child’s presence. Research finds that children internalize such negative criticism. Children of divorce whose parents disparage one another experience more feelings of depression, loss, and abandonment.

It is so damaging that the divorce courts include non-disparagement clauses in child custody orders. They do not want parents to speak ill of one another. They want family and friends to avoid doing so around the children.

Make it a priority to encourage your child to have a good relationship with both parents. You've divorced (or are divorcing) your child's parent, but your child has not divorced that parent. Even when their parents are no longer together, children benefit from the love and support of both parents.

No court can force you and your ex-spouse to work together. But the more you strive for cooperation, the better your children will weather the divorce, both now and in the future.

Do Adult Children Have a Say in Divorce?

In the eyes of the law, a child over 18 does not have a legal say in your divorce. Where you live, how much you pay for their needs, and how much time they spend with each parent will depend on the child and parent's personal preferences.

This topic becomes more complex if you have a child with special needs or incapacitated. In those cases, you may need to create a guardianship agreement.

You can discuss special arrangements, such as a special needs trust if your child will need support for the rest of their life.

Seek Additional Support for Yourself and Your Children

Sometimes, divorce circumstances include traumatic events:

• Domestic violence
• Substance abuse and addiction
• Child abuse

Consider seeking therapy for you and your children. A therapist can help your children understand their feelings. It may help prevent long-term mental health challenges for your child.

A therapist specializing in divorced families can also help you deal with your ex-spouse. Learn healthy communication tips, dispute resolution, and how to best adapt to being a single parent.

Taking the First Steps in Divorce: Get Legal Help

A good first step is finding a divorce attorney with whom you feel comfortable and confident.

Many family law attorneys offer free consultations where you can ask questions and find out if they are the right fit for you. Finding the right attorney-client relationship can help set a divorce with children off on the right foot for the emotional journey ahead.