Divorce with children, advice, custody and agreements

The divorce of a couple is always a difficult time for the spouses. For the children, however, it is often even worse. After all, they no longer have daily contact with both parents, which is a major emotional blow. However, there are ways to prevent it from becoming a trauma for them. For this reason, here we would like to give you some valuable advice, as well as detailed information about custody options and how to reach an agreement to ease the transition.

Tips and key aspects to protect children in a divorce with children

Divorce with children is the most common thing to happen in Spain. In fact, if we look at the data for 2019, it does not take long to discover that 82% of couples who broke up their marital union had dependent children in their care. By this we mean minors and those over the age of 18 who are still dependent on their parents.
Of course, each case is different. However, it is common that, when the following aspects are taken into account, things tend to go much better.

Reaching an agreement should be the priority

There is nothing more positive for children when it comes to overcoming a situation like this than to see that their parents, despite wanting to divorce, maintain a good relationship. In this sense, a good example of this is often to try to keep routines intact during the break-up process. For example, if the father is the one who usually takes the child to extracurricular classes, it is best to continue to do so even if there is a divorce lawsuit involved.

During this time, it is advisable to talk to the child and explain the situation in a way that he or she can understand. In addition, the child should be allowed to express his or her feelings, whether positive or negative.
Having said that, both parents should sit down to negotiate the agreement that will govern the divorce and, with it, their lives and those of their children once the process is finalised. The priority at all costs is to avoid legal proceedings that, in one way or another, will affect them. Moreover, if the judge considers that the two of them are getting along well, it is normal that he or she will not order precautionary measures to protect the children.

It is true that, in order to formalise a separation with children, it is not possible to resort to the 'express divorce' formula, which allows the marital union to be broken off through a notary. However, the economic, temporal and, above all, emotional cost of a contentious divorce will always be much higher than that of an amicable divorce.

Child custody

It doesn't matter whether we ask psychologists, educationalists or family law experts. The answer from all of them is unanimous: joint custody is the most positive option for children once a divorce is finalised. In fact, if we take into account that it is already the priority alternative in Catalonia, the Basque Country, Navarre and the Valencian Community, and that the rest of the autonomous communities are legislating in this direction, we have no choice but to affirm that case law is moving inexorably in this direction.
But what does joint custody imply in a divorce with young children? Let's take a look:

Both parents retain custody of their children for legal purposes.

Both also devote a similar amount of time to their care. This may not be 50%, but as close as possible.

The children can maintain their routines in the same way as before the separation.

Alimony does not apply as both parents share equally in the medical, food, educational and clothing costs of the children. It only applies if there is a strong economic imbalance between the two.

These implications have an additional implication: both parents must live close to each other. This does not mean in the same neighbourhood, but generally in the same municipality or in the immediate vicinity. In addition, a 'family meeting point' has to be set up, to which the children have to be brought to be picked up by the other parent.

We clarify this because, despite the fact that shared custody is the current priority regime in many autonomous communities when facing a divorce with young or older children, it is the judge who has the last word. The judge, based on the opinions of the parties involved, the psychological reports and the economic and residential information provided by the parties, will determine whether the necessary circumstances exist to apply it. The child's best interests will always be given the highest priority.

It would not be the first time that, after examining the divorce agreement with children submitted by the parents, the judge modifies it and establishes a different custody regime. For example, it may happen that they want a shared custody arrangement but, as the circumstances are not right, the judge establishes a different visiting arrangements and child support. Or vice versa.

For example, it may be the case that, after the divorce, the child's mother decides to go to work in another city while the father stays in the same city. In that case, joint custody is impossible. Moreover, if the judge considers that it is a priority to preserve the child's routines and the male parent has sufficient financial, employment and residential stability, it would not be unusual for him to be granted custody.

The child can never be a weapon against the other parent in court.

We are well aware that it is not always possible to reach a divorce agreement between both parents. This, as long as the will of one parent is firm, will always result in a contentious process that can be delayed for months or even years if there are appeals.
There is probably no worse ordeal for a child than having to go to court to testify or to undergo a psychological test. However, it is avoidable. Either party has the right to request that children over the age of 12 (in some cases, as young as 10) appear in court. And they have an obligation to do so.

Generally, when this happens in contentious divorce proceedings, it is because the child is to be used as a weapon of war by one former spouse against the other. The experience of lawyers and judges is that most parents who resort to this do so by manipulating the child's testimony. This may work to their advantage at first, but will have very negative consequences for the child in the short, medium and long term.

How to deal with a divorce with children? Other advice and recommendations

Another of the best pieces of pre-divorce advice we can give you is to think about your own well-being and not dump everything on that of your children. Why? Chances are, if you succeed, you will end up making the best decisions for you and for them.
For example, learning to curb your emotions will allow you to avoid making radical and far-reaching decisions at inopportune moments. For example, if it is your partner who has told you that they no longer want to live with you, it is common to feel a certain desire for revenge. However, it is best to wait a few weeks for these emotions to subside.

For your part, think that this will be the ideal time to create new bonds with your children. For example, if you agree to joint custody, you will have to take over tasks that your partner used to do. Something that, although it may seem impossible, can translate into a better relationship and the dedication of much more time. Something that, in the end, is what the children need most in this type of situation.

Nor is it positive to dwell on what has been lost. It is always better to focus on finding solutions and on the future. Economically, socially and in the family. Learning from the experience will help you to avoid making the same mistakes in the future.

In short, there are no magic formulas or tricks before divorce. Nor for afterwards. What you can be sure of is that, bearing in mind the information we have just given you and putting these tips and recommendations into practice, the process will be as atraumatic as possible for your children and for you too. Try to reach a good agreement, which requires the services of a professional specialised in family law, and focus on the future. Your new life will be different, but it does not have to be worse.