How Does a Divorce With Kids Work?

All divorces generally follow the same process. But when children are involved, there are extra steps and considerations. You should expect to have additional conversations with your attorney focused on child custody, visitation, parenting plans and child support.

The divorce process can also get ugly if parents begin to attack each other to gain custody. Character witnesses, testimonials, text messages, and social media posts are fair game in contentious family law cases — some ex-partners will stop at nothing to show the other is an unfit parent.

It is important to keep in mind that many courts will look for ways to grant parents shared custody, unless there are specific reasons not to. They will consider, above all, what is in your child's best interests. If you and your spouse are able to work together with the same goal in mind, you can have a quicker and less harmful (to you and your children) divorce.

The topics below can bring up difficult emotions, but they will help you prepare for a divorce case that involves minor children. Being as prepared as possible can help you and your kids understand the changes ahead.

Divorcing With Kids: The Process

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

1) Divorce Filing

Child custody and child support will be part of your divorce filing (your request to start your divorce case).

2) Emergency Orders

If your children face harm, you can ask the judge for an emergency custody hearing and temporary orders to protect them.

3) Divorce Settlement Agreement

If you decide the issues of child custody on your own, you can include it as part of your divorce settlement agreement and ask the court to approve it. A judge will make sure it is in the best interests of your children. You will need to decide on all issues, ranging from who your child will live with to who gets to make decisions about schooling and healthcare.

4) Mediation

Some states and counties require parents to attend mediation for custody and visitation. During mediation, you and your spouse will meet with a neutral mediator who will help you reach an agreement on child custody/parenting plans/visitation.

5) Court Hearings

If mediation is unsuccessful or not required, and you cannot agree on your own, your case will go to a hearing in front of a judge. You will have a chance to present your side. The judge may ask mental health experts to weigh in on what is best for your child, and they may even have a guardian ad litem represent your child's interests.

You may have numerous hearings during your divorce. If it will take awhile to get to the final custody decision, the court will make temporary custody and support orders that you and your spouse will need to follow.

6) Divorce Order/Decree

The judge will make a final decision on your divorce, including orders for custody, parenting time/visitation, and child support.

7) Appeals and Changes to the Divorce Decree

If you disagree with the court order, there are ways to appeal the decision. Similarly, if anything substantial changes in your life that will affect custody or child support, you can ask the court to change the order by filing (with the court) a motion to modify child support or child 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 physical custody percentage (typically 50/50)
  • Parenting time (does one parent get kids on the weekends or for certain holidays?)
  • Responsibilities as parents (driving to school activities, vacations, purchasing clothing, paying for insurance or cell phones, etc.)
  • Who makes the big decisions (schooling, healthcare, religion, etc.)
  • Child support payments and payment schedule

You will also need to agree on all other divorce issues such as property division and alimony.

Agreeing on these topics during such a difficult time is not easy. It may take some "unofficial" negotiations to reach an agreement. Once you both agree to the arrangement, you can skip arguing in court or in mediation and jump to making the plan official.

Because there are so many details to consider in child custody, many people choose to have lawyers review their divorce agreements before they give them to the court. This is called 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 lives change. The agreement that made sense for your preschooler probably needs 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 proceeding, this is a significant change for them, and they will sense your emotions. Divorce might separate your child from their friends or school, 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 advise you on the best ways to help your kid's new life feel stable (such as keeping the family home) while ensuring they are provided for. Your county judge's job is to make sure 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 when it comes to:

  • Keeping the family unit together for siblings, half-siblings, step-siblings, adopted siblings, etc.
  • Assigning a co-parenting schedule or child custody schedule that favors one parent above the other (most courts presume 50/50 child custody)
  • Selecting higher or lower child support than you predicted
  • Reconsidering custody or financial orders if you or your ex-spouse are remarried or have other children
  • Choosing the most stable environment between two homes
  • Limiting changes for your child (such as keeping them at the same school or home)

While this can feel like judges take sides, most state laws enforce the best interests of minor children over any other family members.

2. Consider Keeping Your Kids Out of Court

Your children may hear about addiction, cheating, crimes, fraud, domestic violence, financial issues, or other stressors. Children that are 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.

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. Note: divorces that involve criminal matters (like abuse or a parent losing all their money by committing fraud) generally need to work with a judge.

Most divorces are in no-fault states so your child won't be asked to testify against another parent. However, if it is relevant to the case, you can ask your child to speak, or a judge could ask them to testify. This is rare, but may happen if there are harassment problems or abuse.

3. Children May Be Able to Share Their Custody Preferences

There are times when your children will be directly involved in the proceedings. This varies depending on the child's age and state. Some states allow children as young as 12 to state which parent they want to live with, and many courts will let even young children offer an opinion on questions of custody. This often happens in a private conference with the judge, rather than in a large courtroom.

Older children might be able to voice their opinion, and judges in many states will consider their wishes — unless it puts the child in danger.

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

  • California will let children explain who they want to live with at age 14
  • Washington does not let minors offer their opinion unless the judge requests it
  • Wyoming allows judges to consider the wishes of children age 12 and up

This also works the opposite way. A child can choose to live with one parent, but later refuse visitation with that parent, and the courts will consider the child's wishes. If state law allows it, and a child is competent and can explain their reasoning, they will be able to have input.

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.

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 complicated if you have a child who has special needs or is over 18 but is incapacitated. In those cases, you may need to create a guardianship agreement.

Special arrangements (such as a special needs trust) can also be discussed if your child will need support for the rest of their lives.

Taking the First Steps in Divorce

A good first step is finding a divorce attorney that you feel comfortable with, who will guide you through the process.

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

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Can I Solve This on My Own or Do I Need an Attorney?

  • You may not need an attorney for a simple divorce with uncontested issues
  • Legal advice is critical to protect your interests in a contested divorce
  • Divorce lawyers can help secure fair custody/visitation, support, and property division

An attorney is a skilled advocate during negotiations and court proceedings. Many attorneys offer free consultations.

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Don't Forget About Estate Planning

Divorce is an ideal time to review your beneficiary designations on life insurance, bank accounts, and retirement accounts. You need to change your estate planning forms to reflect any new choices about your personal representative and beneficiaries. You can change your power of attorney if you named your ex-spouse as your agent. Also, change your health care directive to remove them from making your health care decisions.

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