In this episode of Children First Family Law, Krista guides you through the intricacies of divorce using a child-centered approach.
Krista shares her top ten considerations for those contemplating divorce, emphasizing the children’s best interests. She highlights the importance of identifying subtle forms of abuse, such as coercive control, and discusses the potential for reconciliation in non-abusive relationships. She also underscores the value of seeking expert guidance and the value of contemplating legal separation as a potentially better first step as an alternative to divorce.
Krista addresses the challenges of co-parenting and financial management post-divorce. She explains how the legal system prioritizes the child’s best interests in parenting time and decision-making, discussing the impact of shared parenting responsibilities and common conflicts. She delves into income imputation complexities in child support and spousal maintenance cases and explores changes in parenting dynamics when parents previously less involved in primary care seek more active roles.
She further examines the impact of divorce on relationships and future planning, considering the complexities of forming new relationships and relocation challenges. Krista highlights the importance of assembling a reliable team of professionals and explores different approaches to handling divorce, such as hiring attorneys, negotiating amicable agreements directly, and mediating.
This episode is a must-listen for a comprehensive guide to navigating divorce with the children’s best interests in mind.
In this episode, you will hear:
- Importance of a child-centered approach when considering divorce, emphasizing hiring professionals who prioritize children’s needs
- Identifying and addressing various forms of abuse, such as coercive control, and exploring legal separation as an alternative to divorce
- Navigating co-parenting and financial management challenges post-divorce, especially for primary caregivers adjusting to shared parenting time and decision-making
- Understanding the complexities of income imputation in child support and spousal maintenance and the dynamics of previously uninvolved parents seeking active roles
- Impact of divorce on broader relationships, including friends, family, and new relationships, along with the challenges of potential relocations
- Building a support team of legal and emotional resources to guide through the divorce process
- Emphasizing the well-being of children in family law and discussing best-interest attorney roles and future series on domestic violence
Resources from this Episode
www.childrenfirstfamilylaw.com
All states have different laws; be sure you are checking out your state laws specifically surrounding divorce. Krista is a licensed attorney in Colorado and Wyoming but is not providing through this podcast legal advice. Please be sure to seek independent legal counsel in your area for your specific situation.
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Top 10 Things to Consider When Contemplating Divorce Podcast Unedited Transcript
Hi everyone, thanks for joining me for today’s episode. For those watching on video, you might see there’s a big German Shepherd curled up on the leather chair behind me. Welcome to Ace. I told you all that my dogs would make an appearance from time to time and apparently he’s decided today is his debut. So welcome to you all.
Today we’re going to be talking about the top 10 things I think you should consider if you’re contemplating divorce. Now, I will note that I’m going to be using the word divorce when I mean it very generally. Today you might have other forms of relationships, like you’re co-parenting with somebody who you’re not married to and you’re considering leaving that relationship. These things apply to you as well, and I don’t mean to leave you out by using the phrase divorce, even though you’re not legally married. I will say if you go Google which I did in preparation for this what are the top 10 things I should think about if I’m getting divorced or thinking about getting divorced? You’re going to get a lot of different lists. So, as in anything in life, right, you should be very cautious who you get your information from, and you should go get as much information as possible as you’re contemplating this, because different people’s advice can be very, very helpful because it’s really being brought to you through different lenses. So for me, this is being brought to you from an attorney, a child advocate, somebody who has represented parents, who does a lot of mediation, who really believes in amicably ending these relationships when there are children, so that you can co -parent long-term, and so those are the lenses that I’m wearing, basically, as I bring this to you.
Addressing Abuse
So, first thing I want to tell you to do, number one is going to be if there is abuse. Now, in my last episode or one recently, I think it was in the last couple episodes I have shared the trends going on regarding domestic violence and the things to think about, what those definitions are, what coercive control is. It doesn’t necessarily have to be abuse in a way that you would maybe previously have thought about it in terms of somebody who is hitting someone or maybe has gone to jail. There are a lot of different variations of abuse and I encourage you to go back and listen to that episode if you haven’t already. I won’t repeat it all here, but there think I read even into the definitions of coercive control, for example in the Colorado statutes, and there is a very long list of things to consider in that.
So you need to think about what does that abuse look like legally, and if you’re in a situation that is abusive, then most people would tell you that you should leave that relationship if it can’t be fixed, and I would agree with that. So I think that that is the first thing that you need to consider. If you’re in a dangerous situation, there are protection orders available through civil courts or through filing for divorce. You can often get a protection order for yourself and your children either both you and your children, or one or the other for the children or for you and that gives you protections physically, but there are a lot of things to think about about whether you think that’s a necessary thing to go do, and I definitely suggest that you consult with an attorney who is somebody who specializes in domestic violence. There isn’t any kind of licensure or anything like that that you have to look for, but look for somebody who is wise about how to handle domestic violence, child abuse, child sexual abuse. These are very serious things that you need to consider, I think, first and foremost. Second thing, though if you are not abused and if you don’t feel that you have an urgent need to leave this marriage or relationship.
Evaluating if the Relationship Can Be Saved
The second thing I think you should consider is can this relationship be saved? Have you tried to save it? Have you gone to counseling? Have you talked with your community? Do you have a community around you of people who you can communicate with? Have you gone to therapy? Have you gone to couples therapy and individual therapy? Have you done the work? Have you self-reflected about whether this is something that you can do something about in terms of changing? Also, one of the strategies I would tell you regarding this question of can it be saved is you should think about whether to file for something a little bit short of divorce.
So, for example, in Colorado, you can file for legal separation instead of divorce, and I’ve talked about this in earlier episodes, but I will explain that. Oftentimes, filing for legal separation lands more softly to the other party, to your husband or wife or partner then a divorce filing lands In Colorado. The process is exactly the same whether you file for legal separation or divorce, so you aren’t injuring your case. You can always convert it to a divorce if you want to, later in the process, without going through the process again, and I’ve talked about that in an earlier podcast and you can certainly find more information about that online as well. The other thing you can do is if you file for legal separation or divorce, you can hold cases in abeyance or basically freeze them if you’re going to go to counseling. So sometimes people will decide to file for legal separation or for dissolution, for divorce, and then they will put the case on hold for a little while to go to counseling. In Colorado we have a statute that allows us to do so. I believe we can put it on hold. I think it’s 63 days in the statute.
Some courts are a lot more liberal about that and allow for longer time. Many courts will allow you to, without dismissing the case, go through two or more rounds of this freezing of the case. You’re not incurring many or really you should be hardly incurring any at all attorney’s fees during that time if you have an attorney, but you are getting the protections that the case allows once it’s filed. So when a case is filed, there are certain rules that you have to follow in terms of not, for example, selling unnecessary property. Like you can’t go do things that are in violation in Colorado of what we call an automatic injunction. You can’t go buy a house Although I did have one opposing party go do that, which was crazy because the court did nothing about it but in theory you shouldn’t be able to go buy big things, sell big things, drain it, retirement accounts, things like that. You can’t do those things either in contemplation of divorce or during the pendency of a divorce. And so sometimes people will say, well, I think that my spouse is now diverting all his or her income into accounts I don’t know about, and so those things, while they’re not really ever okay, they’re definitely not allowed if you are doing that when you’re in the middle of this divorce process where you’re under the court’s jurisdiction.
So it’s sometimes a good idea to go ahead and file, because that should, at least in theory, freeze some of the funny business that would go on financially potentially and leave things sort of in a status quo mode of the financial piece of it. And now you have a court that is looking at your case and able to help if you need it. So your case is already rolling, but you still can then freeze things and in Colorado it’s called holding the case in abeyance and that can allow you to work on it. So think about that. If you’re thinking about divorce, it is a way to get those financial protections and to have the case start up. You’re therefore already moving through some of those waiting periods, but you’re holding off on the heavy lifting of the case, and when I do it this way, what I do is I wait till just before the initial status conference and then I ask for the advance then. So then my client or the people with whom I’m working are getting about six weeks or so before we even ask for that hold to happen, and then they’re getting the 63 days and then we can ask for the 63 days again.
At some point the court’s going to ask you to just dismiss the case, or, if you really leave the case alone, the court will dismiss it and you can refile it later. That’s called dismissing without prejudice. It’s a legal term you don’t really need to know, but it’s a term that says you can refile it, and that’s because courts want to move things along and don’t want things just hanging out there with no action on it. This also can be helpful in states where there are longer waiting periods to get divorced, and so look at your own state as to what yours shows, but by getting a case filed and moving, you can start moving through some of those processes. Some states actually require you to be separated physically for a period of time, like a set period of time before you would even file for divorce. So if you’re contemplating it, you want to think through what those deadlines are, what you have to do. You don’t want to think through this so long and then realize that you’ve needed to do something months ago for this to even move forward. So look at those timelines and then really do ask can this be saved?
I’m going to try to have some people on the show in the future who actually did save their marriage. It doesn’t happen very often, honestly, by the time you get to the point where you’re talking to lawyers, it’s pretty far gone generally, but it does happen from time to time that people enter this process and then change their minds and it’s interesting to get their perspectives on. I think they would pretty universally say that they’re glad that they did so, they’re glad that they were able to save it and that their marriage is richer on the other side of having gone through the hard work of fixing it, even though they were very, very close to divorce. Of course there are many stories of the opposite, people who are very glad that they ended up going ahead and getting divorced, who contemplated it years in the past and then didn’t do it and should have probably done it, and so we’ll have those voices on as well. But that’s number two.
Considering the Impact on Children
Number three, of course, obviously the name of this whole thing for for my podcast and my firm is Children First, family Law. It is the huge important thing for you to consider is your kids and what this means for them. It’s very common that you hear people talk about the idea that it’s good to get divorced if you’re fighting a lot, because two peaceful homes will be better for the children, and there’s a lot of narrative out there, and sometimes I would say that’s true. It’s, of course, true depending on the level of toxicity going on, but I will tell you that the co-parenting toxicity that occurs in families that cannot stop fighting even after divorce is, I think you will find in the research, worse for children. Even if it’s not worse, it’s still really, really bad, and it is a misnomer to think that you’re going to go from a toxic marriage or a toxic relationship where there’s a lot of fighting the kids are exposed to to a peaceful co-parenting relationship that doesn’t affect the kids negatively. It’s much, much, much more common. Did I say much enough times? I can’t emphasize it enough.
It is much more common that we have parents who fought a lot in marriage or in relationship fighting even more after the breakup, after the divorce, after the allocation of parental responsibilities, and now you have the children going back and forth and being put in a situation where you don’t know what’s happening in the other home. Necessarily You’re relying on the children to tell you, which has its own dynamics and its own problems of relying on children to be the deliverers of this information. A lot of times you are. You need to consider that you are going to lose control over the children during the time that they’re not with you, which is sometimes a big shock to people. Sometimes I get people contacting me asking for advice about what they’re going to do when they get divorced or what this is going to look like, and they’re very surprised. Especially. This is true, I think, of stay-at-home mothers, not so much true of people who are already out, both working outside the home, both very involved in the kids’ lives. We have a lot of times stay-at-home moms coming and saying well, I did everything. I’m the one who has taken the kids to the doctor, I’m the one who does all the cooking, I’m the one who takes care of all their needs. My husband or partner doesn’t do very much and goes and works, and that’s how we’ve set things up. I think that I should have all of the parenting time, or they should just see him or the partner during a couple weekends or during the day, or not have any overnights, etc. And it is a super shock to these people to find out that that is not likely. What is going to happen Now?
Colorado is not a 50-50 state. This is something that people get wrong all the time. The preamble to our statutes say that it is desirable for both parents to have a lot of input in their children’s lives, and I think everybody can agree that, unless there’s abuse going on, that that’s true. But it’s a best interest state. Most states are best interest states, meaning we are not going to default just to a 50-50 plan. But what are the best interest factors? Only one of them is what you want as a parent, and there also I’ve said this on other episodes there is no age at which time children get to choose. Of course, as you get more mature and old which usually comes with age that voice of the child becomes more prevalent, more of a heaviness in the factor analysis for the court.
But there are a lot of other things, and one of them, for example, I’ve talked about before, is the ability of each parent to affirm the love and affection of the children to the other parent and the ability to put your own needs underneath the children’s needs, so to put their needs first. These are areas that get very much ignored, I think, or at least not emphasized enough when you’re considering this, because there’s a tendency of a parent who’s done most or all of the control in the parenting situation often to minimize the importance and role of the other parent. And that is a real challenge when we go into a co-parenting situation, because you will lose control of some of those things. I will hear people say a lot well, why should this other parent be able to take the children to the doctor or go to parent-teacher conferences or, you know, make some of these decisions or be at every game? I don’t want this person to go to every kid’s game. He or she never did that before. Why are they doing that now I often hear from moms why is he being super dad now? He didn’t even know the names of the medical providers before and all of that is true. But it isn’t at all unusual for a parent who has relied on the other parent, who is more available or has been sort of deemed more primary in meeting the kid’ needs, it’s not at all odd for that other parent now to become more of a super parent and to get more involved. And the courts and the system and all of us really want parents to both be involved and so when people tell me, well, he’s not super parent, he shouldn’t be able to do that.
I remember I had one case where the parent was adamant. Again, this was a stay-at-home mom. I think it was a homeschool mom. Actually they were starting to send the kids to school and the mom was just adamant that the dad, who was very educated and you know, good, executive, functioning, capable person, this mom was just absolutely sure that this father was not going to be able to manage the child’s kindergarten or first grade homework, for example. I have other cases where I had a dad who was just sure that a child should be doing extra math homework every single day and practicing music every single day, even if the school didn’t require either of those things every single day. And that dad, even though that’s really important to him, the mother wasn’t doing that and he believes that he’s the better parent because of it.
Well, the court doesn’t think that the court isn’t going to say, well, if the school isn’t assigning homework, that this child has to do math, unless there’s some real reason for it, that is objective, that it’s going to be a choice that is happening in one home and not happening in the other. Same with things like what kind of food they eat or what time they go to bed. Sometimes we have problems with a lot of times we have problems with cell phone access, internet access, how much video gaming they get I could go on and on with the list of things that people fight about. And you do lose control because you will not have the ability to know those things or to control them. And so sometimes people say, well, I’m not going to be good in that environment, I need more control than that. And then you really have to evaluate whether or not your current situation, married or in that relationship, is better than leaving the relationship. Okay, so that’s three.
So much we’re going to talk about about children, and every episode we talk about talks about what this means for them. But obviously I would put it number one, although I think abuse needs to be one. And secondly, can it be saved? Needs to be the second factor. But my listing children third does not mean that it is not top, top, top as well.
Financial Implications
Okay, four, financial what does this thing mean to you financially? Again, people come with the wrong idea that they’re going to be able to keep their old life in the way that they have enjoyed it in the past when they move into divorce.
Essentially, the courts look at a divorce as splitting up a business. Okay, they’re going to look at all the assets, all the debt. I’ve talked about this in an earlier episode so I won’t get into it in too much detail, but you need to understand that it’s pretty much going to get split. Now, colorado is an equitable division of assets, state equitable division of debt as well, so we’re going to look at what’s fair. That means it’s not always 50-50, but a lot of times it is Okay. Now, judge Lung, in a previous podcast, spoke to this very eloquently about what he thinks about and that it often isn’t a 50-50 situation, but I think, especially if you’re settling cases, it almost always is very close to that. But I think, especially if you’re settling cases, it almost always is very close to that. And even if it isn’t exactly 50-50, then there are other things that give, like less alimony, less maintenance, less assets coming from different areas. So when you’re thinking about it, I think it’s helpful to consider that you’re splitting everything in half. Okay, so now people are always very surprised that child support and alimony maintenance is what it’s called in Colorado are lower than they expected.
So there are calculators available online. Just Google child support and alimony or maintenance calculators in your area and you will find software. Attorneys have usually more sophisticated versions of that software, but it’ll give you a pretty good place to start. You need to know your income. I usually do it monthly, but it’s basically your gross income, so before you take taxes out and your partner’s gross income, and then in Colorado it’s based on overnights with the children.
Other states have different rules in terms of how they look at it. Some states do it by number of hours in a day, 12-hour windows, for example. Others do it differently. So make sure you check on your state’s laws. But essentially in Colorado, we look at how many overnights that you have, and then there are different considerations about that. I won’t get into a lot of detail about this, but you should look at it online and look at how it’s calculated and consider whether or not you will have enough money to survive the kind of lifestyle that you expect and want.
Now there are other factors that get considered in spousal maintenance, for example, the length of the marriage, the lifestyle during the marriage. There are a lot of different things to think about and you can find those statutes online as well. That detail in great specifics what to think about around those situations. But just know that it’s going to be rougher than you might have expected financially. And this lifestyle of the marriage argument does not mean because there’s only so much to go around. The court can’t make something out of nothing and they aren’t going to, for example, give you a massive house and give your spouse not enough assets to have a home as well. So there’s only so much in the pie and we have to divide that up. If you have a lot of debt, there’s just only so many ways to split it and to divide that up. So make sure that you’re considering what your financial picture looks like and recognize that it might be rough.
Another example would be the marital home. If you want to stay in the marital home, unless you come up with creative settlement options, you might have to go ahead and refinance that and if you don’t have the income to support a loan or somebody to co-sign with you, you won’t be able to keep that home no matter what, unless the other party is willing to work with you to stay on the loan. If that other party is the person who’s holding the loan or is on with you, there is not a way that the court can say that that person has to stay on the loan. They would have the house be sold first. I suppose there might be some possible considerations where they might. I’d say, for example, like, let’s say there’s a special needs child or something like that. There might be some extreme situations where the court might order something different than exactly having to go sell it in that situation.
But generally, as you’re thinking about this, you should think about what does it look like for me to have half of everything and whether I can survive based on the alimony slash, maintenance and child support that I will get, and if you can’t do that, then you just need if you can’t survive in the way that you want to look. You need to think about what that means. Does that mean you’re going to go get a different job, or what is it you’re going to do? And that brings us to my fifth top 10 thing for you to think about is this what does it mean to your day-to-day life if you get divorced?
A big one here is that you both will be assigned an income, unless you have children who are underneath the age that requires you to work, and that varies state to state. In Colorado it’s under two years old, but if you’ve got children of all of your children over two years old, then you will be required to be imputed or assigned an income on the child support and spousal maintenance worksheets, and that means that we’re not going to consider that you didn’t work in the past. Now we might consider it. Let me back up on that. We might consider it in terms of giving you a step up of the type of income that you would need to get, but you’re at least going to be assigned full-time minimum wage or you’re going to be assigned what your reasonable income would be for your education and experience, and so you have to consider that. So if you have a PhD and you just haven’t used it, you’re going to be expected to use it.
If you had the ability, you were in I don’t know marketing before, and then now you’ve been out of the workforce for 10 years. If you’re, for example, a nurse, you might need to go renew your license If you’d love to expire same with teachers, different jobs, like that but the court is going to look at what your income should be and expect that you will work full time. Now does that mean you have to actually work? No, you don’t have to. No one’s going to make you go to work or get a particular job, but you will be assigned an income that is reasonable and doesn’t allow you to be what we call voluntarily underemployed or voluntarily unemployed. Okay. So underemployed it means.
I think I shared with you before the law school example of the lawyer who’d said he wanted to be a ranch hand and that was his life dream, supposedly, and it would have resulted. The actual income he could make as the ranch hand was far less than the money he was making as an attorney. Therefore, the court said that’s fine, but you get to be imputed your lawyer income while you’re out on the range being a ranch hand. So that’s the thing we’re talking about. You can go work or not work, you can work at whatever you want to work at, but you will be assigned what is a reasonable income. So what does that mean to your day-to-day life? Well, if you haven’t been working, or you’ve been working part-time, or you have been working in an area I don’t know, let’s say that you love art and you’ve been doing a lot of painting, but you’re not selling your paintings and you’re not making much money. It’s been more of a hobby for you.
Either you have to go to work or convert that into a paying type of job, or you will have less money to live on. They will not make your opposing party or the co-parent, the person you’re divorcing. They will not make that person pay you more just because you’re not working as much. So also, I mentioned homeschooling before. Homeschooling often ends. It depends, I suppose, on the state, but there’s a lot of states that are not fans of homeschooling. Even if you did, homeschooling often ends. It depends, I suppose, on the state, but there’s a lot of states that are not fans of homeschooling. Even if you did homeschooling, even if that was the choice that you made as a family to do homeschooling, that often ends because if you two can’t agree that you’re going to continue to homeschool and, honestly, that obviously makes an impact on what a person is able to earn if they’re homeschooling their kids and they’re not working during that time. So generally and this is true of private school as well if parents don’t agree to private school, even if they’ve been doing private school before, very unlikely that private school will be awarded moving forward unless you agree to pay for it exclusively, which many times people cannot afford to do.
And then you’ve got to go back to our number four, consideration of financials. Can you still send your kids to a private school if everything is split in half in terms of finances? Okay, so again something to think about. And then again I talked about the super dad, super mom, all of a sudden coming out of the woodwork and engaging in various things that they weren’t engaging in before, at least to the same level.
Day-to-Day Life Changes
Your day-to-day can change quite a bit based on the co-parent now parenting in a way that you might not appreciate the involvement of that person in the kid’s lives. Now, I didn’t state that with a great sentence, but it’s also a sort of an odd concept to think, oh, I don’t really want this co-parent very involved in the kid’ lives. But some people feel that way. They feel like, well, I actually am doing a great job at this, I have lots of control over the homework and the assignments and the extracurricular and the day-to-day and the clubs and all the things, and I don’t like this person meddling in that. And so in that way it affects your day-to-day, because this co-parent sometimes becomes uber involved in a way that you don’t like, or has input that used to be deferred to you that now isn’t deferred to, and many, many parents end up with joint decision-making over major issues like education and medical and extracurricular things like that, and you might have had a co-parent who was almost uninvolved in all of those things and just let you decide. Well, now guess what? Your day-to-day looks different, because this person now isn’t trusting you, which is one of the big problems, right? Or even if a person does trust, you might want to be obstructive to the process of making decisions, and so your day-to-day that used to be kind of you managing everything. Now is you no longer managing everything and that can become a big source of conflict and a big source of disappointment to people. So that’s number five. Okay, number six.
Impact on Relationships
I think you need to think about relationships, relationships outside of your core family, of your kids and your co-parent and yourself. I’m talking about your friends, extended family. When I say extended family, I mean the co-parents, parents and brothers and sisters and cousins and their children. Think about the friends you have, the neighbors that you have if you’re somebody who goes to church, your church communities, all of those different people, and maybe employers, if you work in an area where you have a lot either, where you work in the same company. Sometimes people own businesses together and they both work in the company together. That’s another obviously important thing to think about regarding the financials, but it’s important also to consider regarding relationships.
All these relationships get thrown and the whole thing becomes basically disheveled. It’s great People go into divorce and think, well, I’ll be able to keep everything the same. People will understand. I will tell you that that rarely happens. What generally happens is even people with whom you had wonderful relationships before they end up choosing sides and sticking with that person, and I’ve seen some situations which are really beautiful. And if you’re a grandparent listening to this, I would encourage you to always be the kind of grandparent that is affirming of the other parent and the relationship that the children have. Even if that is not your own child, right, it’s the, so your son-in-law or daughter-in-law affirm that person with the grandchildren and try to keep that intact as much as possible for the sake of the kids. I had one situation where the parent actually goes to family reunions and things like that. That’s on the other side, on the in-laws side, and that can be just a really beautiful thing and I highly, highly encourage it.
But generally think about what happens to all those relationships and what is the impact going to be on you and on your children and on all of them too. You know, years of conflict can occur with neighbors. One example where the husband kept the house but the wife was very good friends with people in the neighborhood and that led to a lot of problems with the child because now the child was sort of feeling a little bit like a spy kind of when the child was with that child’s father because the mom was still friends with all the people who live nearby. There were a lot of unintended and really unexpected things that occurred with that whole situation, with that marital home going to that father and kind of what that meant to the neighborhood and to school dynamics and all those different things. So think about that Very important piece to think about as you’re thinking about divorce.
Future Considerations
Okay, seven, think about what’s to come with the future. Basically. Now, this is something people don’t often think about or maybe just kind of think about in passing. People are focused on their current situation and not what might happen down the road years. But obviously you’ve got to think about what is it going to look like when, if and when, usually when new relationships are formed, both for yourself and for your co parent, what does it mean when that person gets remarried? What are the complexities of dating, the impact on your children of those relationships?
And we live in an era now where people tend to move a lot, especially when they get in new relationships or when things get too expensive for people. So Colorado, for example, is very expensive. It’s expensive for two parents to live together, but it’s even more expensive for a single parent and that leads a lot of people to say, well, I can’t afford to live here anymore, I’m going to go move to a different state where it’s less expensive. And I want to take the children. Relocation cases are tragic because it’s so hard to say that parents not living in the same area is what’s best for the children, but because there are fundamental rights constitutionally from the US Constitution that adults can go live wherever they want, the courts have to presume that a parent is going to move where that parent says he or she is going to move. And the question then for the court is should the kids move as well or not? What is in the kids’ best interests? And so you won’t be able to stop a relocation of your co-parent because it’s a fundamental right of that parent to move.
And it becomes incredibly complex and very sad and very hard to figure out how those kids are going to coexist with two parents in two very different places. Sometimes people move internationally, sometimes people move very far across the country, and then we have all the dynamics of holidays and long weekends and kids traveling incessantly into different time zones and you will not be able to see them on all of the holidays and things like that. So there’s just a lot to think about in terms of what is this going to mean to me and my kids. You know I have parents who will say to me well, of course I should have every Thanksgiving and every Christmas. And I’m like, well, you aren’t going to have every Thanksgiving and every Christmas.
You have a co-parent here and the parent might say, well, but he never cared, or she never cared about Christmas before, she never cared about New Year’s, she never cared about Thanksgiving. It was always my holiday. It was always something important to me, not to that other parent. And it’s like well, welcome to divorce. Now we’re splitting these things up. Same with birthdays. Oh, I always planned every birthday for my kid. Well, now you don’t get every birthday with your kid unless you are magnificent co-parents and figure out a way to do this in the children’s best interests, which would be fabulous if you can do.
But the reality is is that you aren’t going to be there for every single thing because you’re divorced. And contemplating what is going to come over the years is very, very important.
Personal Well-being
Okay, eight again. All these should all be ranked number one, I think, because this is very important as well. But number eight on my list is think about you. How will you be? This is obviously such a personal question. I can’t tell you if divorce is the right answer for you. Only you can tell yourself that. Your friends can’t answer it, your therapist can’t answer it, your pastor can’t answer it. Really no one can but you. I am not in your shoes and I’m not able to answer that question for you.
So some people come at this and say I know you need to get yourself to a settled place where you know that it is what you need to do as you consider all of these different things. Even sometimes people will look at this and say, even though all of this is true and I don’t like the answers to these other questions I am not okay, I cannot stay in this relationship. And so it’s very important that you are self-reflective about what you need, and you’ve got to think about your own needs in terms of what you care about regarding the various pieces that I’m explaining here. So, for example, if you are somebody who you know that I’m explaining here so, for example, if you are somebody who you know homeschooling and deciding what happens with vaccines and having control over everything regarding the kid’s education and medical is the most essential thing for you then you might be willing to say I’m okay staying in this relationship because it’s that important to me. I don’t want to give those things up. Or you might say, yes, those things are very important to me, but I have no choice because I am not okay and I can’t be a good parent in this situation and I have to get divorced. So just don’t forget that you, your emotional, mental, spiritual well-being all is something that you need to be thinking about, and the spiritual side of that is very important to a lot of people. You need to consider that and sort of what your perspective is on divorce, what you think that is best for you with the way you need to approach your life. Don’t forget about that. I also want to mention one other thing about the relationships. This is backtracking a little bit. I want you to know as well.
It’s very important to realize that grandparents do not have the same rights as parents to parent children. Okay, let me just say that again, grandparents do not have the same rights as parents to parent children. So this case you will hear me talk a lot about, it’s a case from the US Supreme Court called Troxel T-R-O-X-E-L. So you need to understand that if the grandparents are very involved with your kids and you think that they’re better and should have their own parenting time or some kind of rights to the children over your co-parent. In terms of like, let’s say something happened to you and you want, in your will, to say that the grandparents are going to get the children. Okay, if you have a fit parent, which is fit as defined by the state, not by you, that other parent is the one who is going to get those children, not the grandparents, okay. And also, you don’t get to say that those grandparents are going to have a certain amount of parenting time over the other parent, ok. So that’s just another important dynamic to think about regarding grandparents. Now, grandparents do have rights to visit. Most states have that, colorado has that they can file and ask to be able to see the children, but they don’t have that fundamental right to be a parent. Ok. And again, it’s kind of like the right to move. It’s even more important than that, it’s fundamental meaning. We can not take that away and that is also why we don’t terminate the rights of parents in these domestic cases, which I’ve talked a lot about on this and will continue in the future, because it’s a very important principle. Okay, moving forward.
Building Your Support Team
Number nine on my list of the top 10 is who is your team? Who is going to be your team? If you’re going to get divorced, you need to start thinking about who are the family friends advisors I need. You should start talking to lawyers early. Look around, see if you’re going to use a lawyer. If you’re not going to use a lawyer, or even if you are, you can go look at the judicial websites in your state and look for family law forms in the state in which you live. Colorado has really nice timelines, for example, about how this works and what to consider. It has all the forms available online so that you can evaluate yourself kind of what is happening in your state and what you need to expect.
If you don’t have a therapist or you think you could use some mental health help, look for those kind of people and you want to do this well in advance so that you’re ready. If you think you’re going to use a lawyer, you might want to contact that lawyer ahead of time and interview various lawyers and then choose one and then you will have the ability to ask that person. Even before you file or the other party files, you can ask that person for some guidance, for example, if you are somebody who is in a course of controlling situation or a situation that has some level of domestic violence, if you are safe and I very much put a caveat that if you are not safe you need to get safe or leave but if you are safe in that environment, you need to be preparing evidence to be able to show what you are going through. That is the best way to be able to prove that there is coercive control going on or other abuse. Now the courts are trying very, very hard to recognize these things, even when there isn’t objective proof of this having gone on.
But if you have the ability and time, as you’re putting your team together, you should start looking for things and making records of things and coming up with the evidence that you need to make your case as strong as possible. That might involve, depending where you live and depending on laws. It might involve recording things, it might involve getting copies of documents, things like that. So you should consult, if you’re in that situation, with an attorney in your state to make sure you’re doing it well. But even if you don’t have that situation, you still want to be putting together. You know your people who can be your team and that should include somebody who, I think, walks with you through this process. You will save a lot of money if you’re hiring an attorney. If you don’t use that attorney as your therapist or your sounding board, or at least you try to limit that. You will be better off if you hire a therapist and you bring along a friend who can help you process through, help you with documents and things like that. All right, so that’s your team, okay 10.
Timing and Approach
Lastly, I think you need to think about timing and approach. Okay, and this is a little bit what I was just mentioning that you need to think about do I have the evidence that I need? If it’s going to be a contentious case where you need to prove things about the wellbeing of the children, you need to make sure that you’re getting your ducks in a row. For example, I have a case with somebody who had a significant other with a serious alcohol problem and that parent ended up going. My client ended up going to get the alcohol purchase records through rewards programs at the local liquor stores and was able to record and produce a lot of evidence about what was happening in the home. Now, again, you have to do that within the law, within what is legal in your area.
In this situation this was all legal to do all of those things and it very much avoided the he said, she said fight where the other party could argue that there wasn’t a problem. It was because we had enough video records, enough photo records, enough other third parties who had seen what had occurred, enough objective evidence that there was a problem. This person had never had a DUI, which would be another objective proof of the drinking problem. But it’s difficult to just go to court where it’s a he said, she said or, if you’re in a heterosexual relationship, a he said, she said situation where we basically look at it and say he’s a drunk, or she’s a drunk, or he or she has a marijuana problem in Colorado. It’s much, much better if you can prove this in a way that is more objective and isn’t just you throwing accusations against the co-parent, which the court has a hard time believing if there isn’t any objective evidence. So consider gathering objective evidence.
So consider gathering your evidence. Consider whether you’re going to go to counseling together and consider the age of your children. Consider whether really it is time to do this or you need to wait a little bit. Usually there isn’t an urgent situation to go get divorced. Sometimes there is, but when there isn’t, you should be very carefully putting your plan together before you do this, before you move forward. Also, I would encourage you to consider the various ways that you can go about this. You can go about this in a way where you are both hiring expensive attorneys. You can go about it through neither of you hiring attorneys and trying to just do it yourselves. You can use collaborative law, which I will be discussing with I’ve mentioned before Terry Harrington in the future, so tune into her episode in the future to talk through and learn about what collaborative law is. Or you can go forward and use a mediation approach with one mediator who can help you navigate all of these things. I’m doing a lot more of that work now.
When you think about mediation, I want you to think about it in a couple of different ways. One mediation approach is we are required to go to a mediator before we go to a contested court hearing, meaning you have to go hire somebody who comes into your case late, spends a couple hours up to all day with you. Generally. Usually it’s a couple hours up to all day with you generally is usually it’s a couple hours, up to about eight hours, and they help you that day only, and then if you don’t settle anything, it’s fine. You just tell the court well, we didn’t settle, or we only settled part of it, and we’re done.
That’s how most people think about mediation, but there also is the option of hiring somebody who is a mediator who can help walk you through the process. This person is not a lawyer for either of you and doesn’t even have to be a lawyer. There are other people who do it, who aren’t even attorneys, although I think it’s better to get somebody who’s an attorney, because they do understand the law, even if they’re not advising you, but they can walk with you through the entirety of the case. They would not represent either of you in court, but they can produce for you solutions that are very child-centric, are very fair, are very amicable, that bring all the best research for how to do this in a way that can help all of you flourish and thrive and leave you in as intact a way as possible. Moving forward, which we all know is the number one thing that is best for your kids, if you’re going to get divorced, is that you co-parent well. So if you’re interested in that kind of approach, you can certainly look at my website.
We are doing that more and more, as I said, because I’m finding that for me. I do take some cases where I’m representing one parent, but it’s very difficult even for somebody, like when I am wearing that hat of an attorney for one parent. It is very hard to not well, let me back up, it’s very hard to do it the way I think it’s best, honestly, because you are just in an adversarial system, and so I’m starting to believe more and more that it’s just the wrong way to do it and that a better approach. You could always go hire attorneys later, but it’s worth trying it in an amicable way, unless you have the kind of factors like I’m talking about about abuse, sobriety, problems, things like that that are really safety issues for kids. Really, if the person is denying those problems the person who has those problems it really does require a litigation approach.
So think carefully through your timing and approach. Also, be careful who you hire. You want to hire somebody who is speaking to you in a way that is child-focused and that is trying to be problem-solving and amicable. You don’t want somebody, I think, for your children, who isn’t going to go to war unless it’s a righteous war, okay? And again, those involve the abuse cases and things like that. All right, so those are the top things I think you should consider.
I’m sure there are many, many more and I’m sure I threw a hundred within those 10, giving you a lot to think about.
But please consider these and other people’s lists of the things to consider before you go file for divorce or in the timing of filing for divorce. And please tune into future podcasts Upcoming. We are going to be having a wonderful judge talking about what is the best interest factors and what are those factors. Basically, what is the best interest of the children generally, and how do we square that with the rights to parent and the things that are fundamental rights in our system, and how do we square that with courts of evidence? That’s upcoming. And then we have a series on domestic violence and on things to think about from psychologists coming up shortly after that, and we have many, many wonderful guests upcoming. So I look forward to seeing you again and letting us have dialogue that hopefully really allows children to flourish in this broken area and really allows you to flourish as well and really I hope raises the bar and the bench standards of how we approach family law. Thank you so much.
What should a couple consider when contemplating divorce?
Couples should consider abuse, relationship viability, impact on children, financial changes, day-to-day adjustments, shifts in relationships, future dynamics, personal well-being, building a support team, and timing/approach, including mediation and legal strategies for a child-focused process.