I often see the question posed to me in the middle of a conversation with a potential client, current client or even an acquaintance who knows I practice family law: should I stay married for the sake of my children? Should I wait until they are older before we split up? How will it affect them? What if they want to live with their dad/mom? These are all excellent questions. No doubt about it. Unfortunately, no attorney can answer these for anyone else. This isn’t a “legal decision” but rather a personal assessment of your situation and how the people in your life will react to different situations. That said, I can point out some things to consider that have come about during my practice:
State of the Home
Are you truly unhappy and is it affecting the children negatively? If you and your spouse are arguing frequently, you are affecting your children. Many couples tell me that they “never fight in front of the children” or “never let their child hear their arguments.” Believe me – children DO know, even if they don’t witness the arguments first hand. They feel the tension. They hear the change in the tone of voice. They understand unspoken cues much more than we would think possible. If you are arguing often, especially if the arguments involve name calling and verbal threats, it may be time to consider some time apart or ultimately, a divorce.
Age of the Child
I am not a psychologist, however, practicing family law for many years has demonstrated to me that children tend to bounce back from divorce more easily than we, as adults, expect. Often people wait until a child graduates a particular grade or makes a milestone to divorce. That said, waiting until they are settled in middle school or high school may be more detrimental on a child. Consider this: Your child is totally dependent on you when they are a toddler or infant. In middle school they have begun to lean on friends in their school and may be involved in school activities. If you are splitting up and it may involve a move from their familiar surroundings, including school and friends, it can be more upsetting for them to readjust. Your child/ren is in the “all about me” mode, which means he or she is thinking “why couldn’t Mom and Dad just deal with each other a few more years? They did it this long!” If you divorce at another point, the child/ren may think “they’ve been together all my childhood….they should just stay together.” I don’t think that anyone would agree that there is a “good age” for your kids to see you divorce. Even adult children will be affected. For that reason, waiting for a particular age may not be the best reason to stay together if otherwise, you want to be apart.
The Child’s Choice of the Home
It is true that when your child is older, the Court may consider his/her thoughts on where s/he wants to live. That, however, is not the final factor in that determination. Both Massachusetts and New Hampshire are “best interests of the child” states. That means the Court will look at all factors to determine where the child should stay. This may include the child’s thoughts but it will certainly include factors such as the ability to adequately care for the child, stability of the home, safety of the child in the home among others, etc. .