Divorce for Men Has Changed a Lot in the Past Decade, Especially for Fathers

"If the dad comes in now and says 'I want more time with my kid,' courts are going to do what they can to make it happen. So you’re seeing this major, major shift."

by Aaron Stern
Originally Published: 
A scene from a Marriage Story

Divorce for men has changed quite a bit in the past decade. It is not necessarily the stereotypical knock-down drag out fight, where divorce lawyers come with knives out and the deck is stacked against dads. Shifting societal gender norms have guided the courts to a more neutral perspective toward the rights of divorced fathers. Parents are more mindful of the effects of divorce on children. Joint custody is more regular. Fathers are seen more as equal parents in the eyes of divorce court.

Jacqueline Newman has watched the landscape of divorce shift in real time. A managing partner of the divorce law firm Berkman, Bottger, Newman, & Schein in New York, who specializes in high-net worth divorce cases, her new book Rules of Divorce: 12 Secrets to Protecting Your Wealth, Health, and Happiness is both a playbook on how to navigate the tricky world of divorce as well as a glimpse into the many ways the process has changed over the past decade.

Fatherly spoke to Newman about her book, the shifting landscape of divorce, and why fathers have more of a fighting chance than ever in divorce court.

From your perspective, how has the landscape of divorce changed over the last decade?

From a high-level perspective, the world has changed, as we all know. Specifically in regards to custody, what’s going on now is as more and more women enter the workforce, and as more and more fathers become more involved than they used to in daily childrearing, you’re really seeing a shift in custody arrangements.

It used to be, for the most part there was pretty much presumption that the mom was going to get custody, and the dad was going to have the every-other-weekend/ Wednesday-dinner-type-thing. And that’s just really become very much a thing of the past.

I’d say that 10 years ago, if I had a father walk into my office and say he wanted 50/50 custody, I would joke “Where are the bruises from where she beats your kid?” And now, it’s really shifted. Now, the Dad comes in and says I want 50/50 custody, I say “Great, let’s go for it.”

Courts are very, very focused on having both parents very involved. I’ve had cases, even when the father historically has not been as involved in child-rearing, and the mother was a stay-at-home mom. If the dad comes in now and says “I want more time with my kid,” courts are going to do what they can to make it happen. So you’re seeing this major, major shift.

This might sound like an obvious question but what, exactly, does 50-50, joint custody look like now?

At least in New York, there are two types of custody: There’s legal custody, and physical custody. Legal custody is where you make major decisions in regards to your children, and physical custody, which is your access schedule.

I would say joint legal custody has probably been more or less the norm, unless there are reasons, for some time. Again, as the shift continues, very rarely am I seeing cases where there is not joint legal decision making, unless the people are truly, truly are coming from different vantage points. So, more often than not, you have that.

Then you have the access schedule, and yes, I have parents coming in that they say ‘I want equal time.’ Whether that’s one week on, one week off; whether that means one parent gets Monday-Tuesday, the other parent gets Wednesday-Thursday and they flip-flop on the weekend. There’s a million different schedules. Now, if you have work schedules that don’t allow for that, sometimes people will compensate by taking more vacation time, if they can’t have as much school-week time. There’s lots of ways that people try to do it, but I think the general notion that fathers – now I’m being a little stereotypical – saying I want equal time with my children, is really what the shift is and the way that courts will bend over backwards to try to make it happen.

A full 50/50 arrangement seems great at first. But, often, schedules clash. What does this look like?

Very often, people will recognize they can’t do 50/50 because of scheduling. I find that probably happens more so than dads coming in, saying they want 50/50 and not getting it. But even when they don’t get it, they’re still getting – we measure in 14-day blocks – I’m still seeing dads getting five out of 14, six out of 14.

So, should Dads who are considering, or going through, divorce be less concerned about losing access to their kids today, versus 10 years ago?

I don’t know if I would be that general about it, because, look, there’s still great concern about it. But I think that the message is, if they want more time with their kids, the tides are turning for them to be able to do that, if that’s what they want.

The one thing I would say, though, is a lot of times you have a Dad come in who says ‘I want 50/50.’ Because his identity’s wrapped up in it. But then he doesn’t exercise it. And I think that’s the worst thing you can do, because then you’re just disappointing everyone. So, you need to be realistic about what you want and what you can actually do, so your children are not disappointed.

How does that work for dads who have been less involved in the child-rearing up until the time of the divorce?

I get a lot of moms who say ‘But they don’t know anything,’ or ‘They weren’t a very involved dad.’ And I do see this. I see a lot of parents, we’ll say fathers, in this situation, who have been less involved in the day-to-day child-rearing, become better fathers and really connect with their children in such a way that they didn’t before because they no longer have the mother to buffer. They no longer sit at the table and have the mom facilitate the conversation. Now they need to have the conversation. And so many dads are stepping up and they’re really connecting with their kids. And it’s wonderful, I think.

What other aspects of divorce are changing?

The spousal support awards are becoming less and less. More women are in the workforce, the formulas are changing and they use to have lifetime maintenance, it’s just so rare to get something like that now. Now there’s much more of an expectation that the non-moneyed spouse is going to re-enter the workforce.

Do you feel like divorces have become more or less amicable over time? And how do you encourage couples to remain amicable?

I think the fighting is less. And the litigation probably on some level is less. There’s a few reasons. One, the fact that mediation and collaborative law have really taken off and I think they’ve become more mainstream. They’re still called alternative dispute resolutions, but they’re becoming less and less alternative. And so more and more people are doing that. Mediation and collaborative law at least recognizes the relationship and tries to keep the animosity to a minimum.

I think what also happens is that, with social media, the fact is there’s so much information out there people see how terrible litigation can be, and they see how nasty it can be, and they hear about how children can be destroyed by it. And I think with that element of information out there, people try their best to stay away from it. I think the other thing is that, while this was maybe always the case, divorce is really expensive. And when you are the moneyed spouse, you are probably going to be more on the hook for the financial hit on this. So there’s a large motivation for the moneyed spouse to settle cases faster, without a ton of litigation, because it can cost a ton of money.

That seems like a positive change for modern families who do still get divorced, right?

I wouldn’t recommend divorce. You need to make sure you’re sure. I always joke, “When you see how expensive, or how it might not look exactly how you think it’s going to look, your spouse becomes a lot funnier, a lot less annoying.” I’m a big believer in everybody trying as hard as you can to make sure it works before you get out, assuming there’s no abuse and the dynamic is not that toxic, especially for your children.

How do you want your kids to describe your divorce as adults? Do you want them to say, “Wow, my parents really kind of kept me out of it. And, while it was definitely kind of uncomfortable and I had to sleep in different houses, I had two Christmases and I got two birthday parties and it wasn’t that bad.” Or do you want them to say, “No, it totally screwed me up, and it was awful, and I was pulled into it,’ and all these things.

Everybody comes in and says ‘I don’t want to screw up my kid,’ so it’s kind of like, well what can you do with that goal in mind?

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