In Part 1 of this article*, I brought up some things to think about before you end a relationship. The list of considerations changes a great deal when there are children involved, even if there has never been an actual marriage. Part 1 still applies, and is I hope good advice for preparing yourself for relationship breakup, but there are very important additional things to know if you and your partner have children together.
I am not an attorney, so nothing in either of these articles pretends to be or should be taken for legal advice. The points I am making are aimed at helping you prepare yourself emotionally and strategically to make one of the biggest changes you can possibly make in your life, and in your children's lives.
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Baby makes three, Judge makes four. Over the past thirty years, divorcing with children has changed as the legal system tries to do a better job at handling highly personal family situations. The results are stunning improvements in some cases, and failures in others. Family law is a work in progress, to say the least.
Currently, instead of dividing the children like the rest of family property, custody of minor children is now a two-part agreement; legal custody (decisions about medical care, schooling, religious upbringing), and physical custody (who has the children with them and when). The physical custody arrangement may be the basis of computing child support. Even if you and your partner agree about these matters, the judge who signs off on your divorce, making it legal, may not agree, and request or even impose changes.
This happens because the judge in Family Court has evolved into a representative for the children's best interest, and what that involves varies not only from place to place (divorce is a local matter), but also from judge to judge. Two examples:
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1. You and your partner agree that you will have full legal and physical custody of the children. You appear in court to have the Judge sign off on your agreement. Surprise! It is quite likely that you will have to defend that agreement when the Judge asks you "Why shouldn't the children's father have a voice in making important decisions in their lives?" The current position of divorce courts in the United States is that keeping fathers in the picture is important, and even very bad behavior on the part of the father may not exclude him from sharing legal custody. This turn of events is something you have to be prepared for, with all possible documentation. The Court will want, and may even insist, that you share decision-making with the person you are divorcing, even if that makes your life very difficult, and provides a continuing opportunity for an abusive person to continue tormenting you.
2. You are splitting assets, and you agree to forgo child support to get other concessions. Once in Family Court, the Judge will not allow the agreement. Child support money is for the benefit of the child, and you do not have the right to deprive the child of that assistance, even if it makes for a clean break and there are other counterbalancing benefits. Now you have to deal with the problems that come from getting a financial declaration from an unwilling spouse, and other complications if your partner refuses to pay, quits his job, blames you for this imposition, etc.