Helping Divorcing Couples Choose What They Want

Parents initiating a Texas divorce often say they are motivated by a wish to take charge of their lives, to experience the freedom of choosing whether or not to be married. But many come away from the divorce process feeling disillusioned: their choices were more limited than they imagined, they don’t experience nearly as much freedom as they had anticipated, and they have to live with financial arrangements and parenting plans that limit their choices more than expand them.

The source of their disillusionment may lie in part in how family law has evolved to help parents and families work their way through the divorce process. In many states, for example, family law presumes that the parents will be joint managing conservators (shared decision making) and follow a “standard” parenting-time schedule that maps out exactly when the children will be with each parent throughout the year. These standard plans are not entirely arbitrary; they are supposed to reflect a consensus amongst experts about what, in general, is best for families and children following divorce—although in practice the standards are also influenced by current political trends and values-based biases. If divorcing parents perceive that the state defined plan does not meet their family’s needs, however, they can craft a plan tailored to their situation. In practice, this means the parents must actively set aside the standard plan, create something different, and then justify their plan to the court before the divorce will be granted—usually with the help of lawyers.

Social psychologists call this form of decision-making an opt out process: parents have the opportunity to opt out of the standard plan at the time of the divorce. It’s similar to other opt out plans used by government and business. In some states, for example, all licensed drivers are automatically enrolled in an organ donor program unless the driver takes administrative steps to opt out. Similarly, some companies automatically enroll employees in a pension plan unless an employee does the paper work to opt out. Opt out plans are valued because they effectively nudge people in the direction that institutions desire; it’s easier for people to accept the status quo than to take the time and effort to unenroll. Enrollment rates in organ donation programs, for example, are much lower in states in which citizens must opt in compared to states that have an opt out arrangement.

There are many arguments in favor of standard plans. They are informed by research and expert opinion, reduce confusion, and help make the divorce process more efficient: Divorcing parents don’t have to reinvent the wheel when they get to that part of their divorce agreement.

But from the standpoint of divorcing parents’ pursuit of personal freedom, the opt out nature of state-defined parenting plans can create problems. Passively accepting a plan defined by the state does not involve an active choice – and may lead to regret if the plan proves unworkable.

Many family lawyers are sensitive to this issue. Those practicing collaborative law, for example, help couples reach carefully crafted agreements based upon their particular interests; agreements are tailor made rather than boiler plate. But such approaches are time-consuming, involve at least two and sometimes as many as five professionals, and cost more than the means of the average divorcing couple.

To limit these costs, many couples turn to online divorce services to file uncontested divorces without lawyers. For couples without children and limited assets, this may be a good option. But divorcing parents and couples with more complicated financial estates should beware—many online sites are form services that provide a “one-size fits-all” divorce agreement. Couples fill in the blanks and the program produces a standard agreement—no exceptions. These document services do not offer couples the opportunity to make active choices or to opt out for a plan better suited to their needs.

In contrast, some online sites are offering more sophisticated services. One site in Texas, Negotiated Divorce, provides divorcing couples the knowledge and opportunity to make active, informed choices about one of the most significant events in their lives rather than mindlessly following what the legislature thinks is best for them. It includes extensive multimedia educational material about crafting parenting plans, dividing financial estates, and complying with the family code. Throughout the process, couples have the opportunity to choose amongst a variety of parenting-time schedules, to allocate parental rights and duties based upon the children’s unique needs, and to divide assets fairly and creatively rather than blindly. And if couples get stuck, they can utilize Negotiated Divorce mediators to identify additional options to break the impasse. And all at a reasonable cost.


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