Divorce and Custody

Divorce and Custody

Cate Malek

Updated May 2013 by Heidi Burgess



The dissolution of a marriage or a long-term "civil" relationship between homosexual couples. Children may or may not be involved.


Any couple considering or seeking a divorce.


Divorce is a possible result of escalating family conflict. A divorcing couple's task is to work through their emotions and learn to communicate with each other effectively enough so that they can create an agreement that serves all parties' needs (including children if there are any) as well as possible. If the couple does have children, successful conflict resolution becomes crucial for the children's well-being. However, a divorcing couple is often dealing with intense emotions such as anger, grief, and fear. These emotions can bog down communication, decision making, and conflict resolution. Many conflict resolution experts argue that the divorce process a couple chooses can determine whether they end their relationship constructively or destructively.


Court systems are inherently adversarial, meaning they create winners and losers. This can encourage couples to channel their anger into trying to win at all costs, escalating the conflict, thereby increasing the pain for all involved.


A popular alternative to an adversarial court proceeding  is mediation. Mediation empowers the couple and can be cheaper,  faster, and less emotionally draining than the courts. Additionally, successful mediation gives couples a model to use in future disputes. Although divorce mediation should not to be confused with family counseling, the open communication that occurs during mediation can be healing for both parties. Divorce mediation also allows the divorcing parties to maintain power over the decisions, and allows them to focus on the issues most important to them. Neither of these necessarily happen in court.

When two people are involved in a homosexual marriage or long-term relationship, their break-up can be especially difficult because in most cases,  they are not protected by marriage laws and are on their own when it comes to dividing property and deciding custody of their children. Mediation is often these couples' best option.

On the other hand, critics of divorce mediation argue that there are power imbalances in relationships. If one party is highly competitive, a better negotiator, or more financially savvy, they can potentially take advantage of the weaker party. Thus, mediation can be inappropriate for relationships in which one spouse  is much more powerful than the other.  This is especially true in abusive relationships. Many people feel these cases should not be mediated at all. 

Collaborative law 

A third choice available for divorcing couples is collaborative law. Collaborative law is a negotiation process where each party is represented by an attorney at a series of four-way meetings. All four participants formally agree not to go to court. The two lawyers pool their skills and bring in outside experts to create a win-win solution. Unlike litigation, which can take up to two years, collaborative law divorces take about six months. If the couple can't keep emotions in check, they are referred to counseling. Supporters argue that, unlike mediation, collaborative law can help level power imbalances. Another advantage is that collaborative lawyers can give legal advice, while mediators cannot. 


Mediation and collaboration are particularly helpful for custody disputes. The divorce process can be stressful for children. It is important for parents to build a new relationship with each other so that they can co-parent effectively after their divorce. Furthermore, a divorce can be an opportunity to teach children how to handle their own conflicts in the future. Not surprisingly, the parents' problem-solving styles are often imitated by children.

If a divorce process goes on too long, it can diminish energy for parenting and drain bank accounts. It is important for parents to move beyond their self-interests and recognize their mutual interest in their children's welfare. Although court proceedings will try to determine what is best for the children, the parents probably have a better idea of their children's needs. Parents can use mediation or collaboration to design a custom custody arrangement instead of giving up control to the court, which may impose a generic plan.

Recent research has shown that it is not divorce itself that affects children negatively, but the amount of conflict the children are exposed to both during the marriage and after. If parents can work together and communicate effectively with each other post-divorce, their children are less likely to get hurt.


Joe and Sheila are seeking a divorce, but are worried about the long-term effects on their two small children. In an effort to make the process as amicable as possible, the couple enlists the help of a divorce mediator, who helps them decide not only how to divide their belongings and financial assets, but also how to arrange custody so that the children get to see both their parents as much as possible. They also agree on methods to deal with possible disagreements in the future, so that the children are not hurt in the process. All of this is done by people who understand their own situation and the children's needs best--the parents--rather than being left up to a judge to decide based on the input from a social worker or a psychologist who might meet with the children and the parents for a few hours before making their recommendations.


Divorce mediation and collaborative law are becoming increasingly popular methods for dealing with divorce. Many states require couples to try mediation or collaborative law before going to court to obtain a divorce. Even when mediation or negotiation is not required, these processes provide so many benefits over court-based divorce that it is often worth trying first. If it does not work, litigation remains as a back-up approach.  However, couples should be aware that collaborative lawyers are prohibited from representing them in court, should the collaborative process fail--they will have to hire different lawyers to do that.  The costs of changing lawyers is seen by some to be a benefit of mediation, although mediators cannot represent the clients in court either, of course.

Links to Related Articles:

Family Conflict
When to Mediate
When to Litigate