A FRIEND from business school, just engaged,
boasted recently not about the virtues of his wife-to-be but about the
Byzantine process he and she had gone through in constructing what he
considered the finest of prenuptial agreements, as if there were some
sort of poetry in the laborious detail involved in dividing assets and
wealth. Months earlier, another friend, who had separated from her
husband, told me she’d decided to go back with him, but only after the
two of them had constructed a “post-nup” that left no doubt as to how
their finances would be divided should they break up again.
I suppose both kinds of agreements are
understandable in an era when so many marriages fail, but it seems sadly
clear to me that both couples, for all their meticulous planning, had
overlooked and ignored the most important point of all. Dividing up
money and assets after a marriage falls apart can be a mess, but it’s
often nothing compared with the agony and emotional torment of a custody
battle — dividing up the children. Money is, after all, only money — you
can make it back, you can do with less of it if you need to, you can
even file for bankruptcy. But children are not commodities that can be
replaced.
Thus, a proposal, based on observation and my
own recent experience of divorce: Engaged couples should enter into a
new kind of arrangement, one that has nothing to do with houses or cars
or the Warhol on the wall but focuses on any children born of the
marriage. If two people can contemplate, before they ever marry, the
possibility of what Walter Winchell called “splitsville” and agree in
advance how they would divide assets, they ought to also be able to make
sane arrangements for dividing time with their children.
For divorced parents, the financial equation is
set as soon as the court or the arbitrator signs the order. Bank
accounts, investments and pensions are divided, and child support and
alimony are assigned. While it is true that support can be altered based
on changing circumstances, most financial cases are settled, and lives
go on. Judges generally adhere to common formulas for how the property
should be divided, so it’s possible to anticipate how your financial
life will look after the marriage.
In the world of child custody, however, there
are few certainties.
Two friends of mine who went through divorce
recently were told that their soon-to-be-former spouses were “willing”
to give them visiting rights every other weekend, plus one overnight
stay per week. (The idea of “visiting” one’s own children, when it first
comes up, can be terribly jarring.) Both were outraged and each has
started what promises to be a long, expensive and emotionally draining
court battle for more of the children’s time.
Such battles are often waged before judges who
have unpredictable points of view about child custody. There are so many
different types of custody schedules and ways of calculating what’s fair
to parents and children alike, that fathers, especially, stand a good
chance of getting stuck with a plan they don’t like — one that leaves
them feeling like a second-class parent. Given crowded court schedules
and a shortage of judges to hear cases, many custody battles can take up
to a year or more to reach a conclusion.
Once a case is finally heard, neither parent
can be certain of legal precedent or anything else that might steer the
proceedings toward a mutually agreeable outcome. A custody evaluator or
a judge can never understand a family’s situation or individual children
as well as the parents themselves do. Some couples have found that by
the time the court has heard their custody case, many of the precious
dollars divided between them in their prenup have found their way to the
lawyers.
Absent a pre-arranged custody plan, the
children in a divorce almost always start one custody schedule and then,
once a court order is signed, must adapt to a new one. Worse, they may
find themselves being used by one side or the other (or both) as
bargaining chips or even strategic weapons.
For a parent, being without one’s children at
such a time, and having to watch from the sidelines as they are
overtaken by anxiety and uncertainty, can make the custody battle by far
the most traumatic aspect of the divorce experience.
With a custody schedule outlined before
marriage, children could have a single structure for their new lives
from the moment their parents separate. They would know where they will
be and when, they wouldn’t have to witness their parents arguing about
the details, and they might not be subjected to custody evaluations or,
worse, be required to testify in court.
In some states, pre-arranged custody schedules
might not hold up in court, and one parent or the other might argue that
circumstances have changed too much since they entered the agreement.
Even then, though, an agreement could serve as a great starting point
for negotiations.
Most of the pain involved in my own divorce
would have been reduced by some kind of agreement before marriage
detailing a custody schedule for children. I was fortunate enough to
secure joint custody of my three children. But I would say to any two
people contemplating a future together that however icy it may seem on
the surface to include children’s lives in legalistic affairs, a little
coldness at the outset could help prevent glacially slow wars — wars
directly involving the children — later on.
Besides, conversations about custody between
two newly engaged people could give them both a window on what their
future spouse will be like — and what he or she will expect as a parent.
For a couple contemplating children, it is never too early to start
discussing parenting roles.
Packing up the children’s backpacks and
preparing them to be picked up by a former spouse can be agonizing even
in the best of circumstances. Even a prenup that outlines a custody
schedule could never change that. But it could at least shield children
from unnecessary pain and relieve some of the hurt for the parents.