Tuesday, June 30, 2015

Tell us: What do you want?


Suppose one reason a divorcing couple wants to use an online divorce service is that it values freedom of choice.   Rather than feeling hemmed in by lawyers’ procedures and obligated to pay legal fees, this couple wants to determine what their divorce agreement will look like, use their marital estate to start their new lives (not fund lawyers),  and drive the process themselves (rather than being lead to an agreement by third parties).   If this is your situation, it may be important to ask yourself: Are we  interested primarily in the opportunity to choose, or is it important that we actually exercise that opportunity?  Knowing we have the opportunity to choose makes us feel good—we have options, we are exercising our freedom. But exercising that opportunity can require effort and risk—we must  research our options, assess their relative advantages and disadvantages, and commit.   

Although this question may seem too abstract, it’s important to answer before choosing an online divorce service.  Here’s an example.  In Texas, all divorcing parents must include a parenting plan in their divorce decree. Parents can’t opt in or opt out, a plan has to be included in the decree or it will not be accepted by the court.  Unlike most states, Texas goes even further. The Texas Family Code also presumes that all divorcing parents (with a few exceptions) will share joint custody of their children.  The code identifies exactly which rights are decided jointly and which ones individually and lays out a parenting time plan, often referred to as the “standard parenting plan,” that specifies when the children will be with each parent throughout the year.  Although a great deal of thought went into this plan, it is a one-size fits-all approach to parenting post-divorce.  It is, in effect, a default plan. If parents don’t want the standard plan, they can opt out and write a different one into their divorce decree that is better suited to their family’s circumstances.  Many divorcing parents find, however, that this requires a lawyer’s help.

Most online divorce services, however, don’t offer parents the opportunity to opt out of the standard plan.  Apart from designating with whom the children will spend more time, these services offer the parents no options at all—the standard plan is what every parent using the service will see in their divorce decree. In these instances, the opportunity to choose is really no opportunity at all—it’s an illusion of choice when no real choices are given.   For many divorcing parents, this will be enough.  The process is efficient, does not require active thought or research, and provides a veneer of assurance that it is a plan researched and recommended by the state. 

In contrast, other online services in Texas, such as Negotiated Divorce, use a different approach.  These services require divorcing parents to make active choices about what type of parenting plan they want to use by offering alternatives to the standard plan.  These are real choices, not illusions; they require parents to decide and say what they actually want.

Although it may seem like the stakes are small, the consequences can be significant. The opportunity to choose is not all that matters, because many parents simply won’t exercise that opportunity.  Inertia and procrastination and a desire to wrap things up quickly with minimal effort will lead many parents to accept the standard plan without further thought.  But is this what is best for all the parents and children who will be forced into a one-size fits-all standard plan? 

In contrast, when given alternatives to decide among parents must engage in a process of active choosing. Rather than simply providing a default standard plan, such services ask a question that many parents welcome: What exactly does your family need? 

Active choosing has two important advantages. First, parents’ judgment about what their children need to thrive developmentally isn’t over-ruled by a legislature defined parenting plan.  After all, who knows children better than their parents?  The legislature can’t possibly define a standard plan that accounts for every family’s unique circumstances.  Second, requiring an active choice promotes learning, self-assertion, and independent-thinking.  If parents are required to make choices about their parenting plan, many will become educated about the topic—knowledge that will serve them in the future as well.

The key point is this: Much of the time, particularly when we are busy, it is reasonable to choose not to choose.  If I’m pressed for time, I order the lunch special without inspecting the menu.  But if the issue involves something important, such as what parenting plan I will impose upon myself and my children, then active choosing may be a better way to exercise my freedom of choice.