How to Prevent Post-Divorce Custody Litigation

How to Prevent Post-Divorce Custody Litigation


Divorcing couples today are often faced with the negotiation of custody/visitation agreements for children that are not even potty trained. However, most agreements contain provisions regarding custody that carry through the age of emancipation (which could be 21!). How can parties anticipate all the special circumstances of teenage children when their babies have not yet reached preschool? It is virtually impossible.

As a consequence, many cases result in costly and acrimonious post-judgment litigation years down the road. One way to anticipate if this could be a potential concern is if parental negotiations over a toddler are strained. If so, you  can bet that as the child gets older, the obstacles faced by the parents are larger and have greater stakes (healthcare, education, religion).

Estranged couples face obstacles when approached with everyday issues including schedules, upbringing, tutors, medications, and etc. These issues are destined for debate even in happily married couples. So, it is not surprising that couples who divorce and become estranged often can land back in court where they started. Post-divorce litigation is certainly costly, and it is inherently filled with stress. And not just for the parents. As a child matures, the psychological scars left by battling parents can be severe.

What can be done? There are many proactive measures couples can take at the outset of a divorce settlement to prevent future litigation.

Steps divorced parents with children can take to avoid ending up back in court.

  1. At Keil & Siegel LLP we encourage all parents to include in their separation agreements clauses whereby couples agree to mediation at any time in the event of a dispute regarding the child. This helps to ensure that the parties stay out of court, thereby saving expense, time, and stress.
  2. Another useful is to include a clause whereby parties agree to share equally any future litigation costs. This way, every step of the way, each party has an economic interest in working out their differences without court intervention.
  3. Tie-breaker and Decision-makers: At the outset of the divorce, the parties may agree in writing to a mutually respected third party (i.e. pediatrician, guidance counselor, local pastor/rabbinical leader) who they agree to consult and rely upon for help in resolving such disputes. These outside “opinions” can be made binding on the parties.
  4. Consideration of all details during the negotiation is crucial. It is important to take the time to work out as many small details as possible so as to not have later misunderstandings which lead to conflict. If the parties agree, for example, to split the child’s Christmas school break each year, we include which party gets the first half of the break in odd-numbered years and then it is reversed in even numbered years so it is consistently fair to each party.
  5. Finally, if the parties simply must have a judge intervene, all separation agreements should ensure concurrent jurisdiction in the local Family Court of the jurisdiction where the initial case takes place. Therefore, if litigation is unavoidable, Family Court can mean a speedier court process, charges with lower fees, and can be more easily approached as a self-represented individual.

The attorneys at Keil & Siegel LLP will help you deploy these and additional time-  cost- and headache-saving strategies tailored to the individual needs of your matter. Please call us for a FREE consultation or complete the intake form below.

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