What to do when facts change in your family law case, part 3: Marriages and remarriages

December 18, 2013

Family law gavel(Editor’s note:  Family law cases may be some of the most fact-sensitive of all; even minor changes in circumstances can have profound effects on the outcome of the case.  So what do you do when there is a change in the facts of your family law case?  We’ll answer that question in a series of posts on the topic.)

In this week’s installment, we will be tackling the issue of one party’s marriage (or remarriage, as the case may be) to a third party.

At first blush, it may seem that this issue is just another version of our first installment on changes in a parent’s living situation.

There’s no doubt that this installment and the first are related; after all, it is assumed that in all but extraordinary cases, two people will live together after marrying.

And it’s also true that many, if not all, of the same issues presented by a parent’s new roommate discussed in the first installment are also applicable to situations wherein a parent moves in with a new spouse.

But a parent’s marriage or remarriage isn’t entirely analogous to a parent getting a new roommate.

The reasons for this are simple: a parent’s roommate (assuming he or she isn’t anything more than a roommate) isn’t going to be considered a part of that parent’s family; a new spouse, however, will be.

Let me put it another way: the parent isn’t only getting a new spouse; the kids are also getting a new stepparent.

Along with this change, then, may come a variety of other changes.

First and foremost is the immediate emotional effect on the children.

If the parents involved in the family law matter have been separated for quite awhile at the time of the marriage/remarriage, the children may have accepted their parents’ separation and the effect on the kids may be minimal.

If, however, the parents’ separation is fairly recent, the effect on the children may not be so insignificant.  If it is your client currently considering the marriage, you may want to have an in-depth discussion with him or her on exactly how this change will affect the children.

If the net impact on the children would be negative, you may need to counsel your client to put the wedding off until it better serves the children’s best interests.  Otherwise, an opposing counsel may seize on this as an example of how your client puts his or her own needs before those of the children – seeking to reduce your client’s parenting time in the process.

Even if the children are okay with the marriage itself, there may be other reasons why proceeding with the marriage could be not in the children’s best interests (and thus not in your client’s best interests in the family law matter).

One of these reasons may present itself in cases in which the parent’s new spouse has children of his or her own.  In some cases, the addition of one or more other children into a family dynamic may not have a discernible impact on the children already present in that family.

In most situations, though, the children will be affected.  After all, if their parents are currently embroiled in a family law dispute, the children’s sense of domestic stability and security may already be weakened.  Even if the new spouse’s children are perfectly nice, their addition to the family dynamic may still further contribute to the children’s insecurities – especially if they feel that they have to compete for attention and affection with these new members of their family.

It’s important for attorneys of both parties to be aware of the potential consequences of these changes.  As the attorney for the client bringing in new stepchildren, it’s your responsibility to ensure that your client considers the best interests of his or her own children during the family law matter – regardless of any other changes in the client’s personal life that may be taking place.

If you fail to do so, a skilled attorney representing the opposing party will not fail to notice the decisions of your client that put his or her own desires and wishes above those of the children’s – and bring them to the court’s attention (who may, in turn, reduce a party’s parenting time).

Along those same lines, attorneys should also be wary of how the new spouse treats the parent’s children.  Tragically often, a parent’s new spouse may have apathy or antipathy towards the children for no other reason than their being a reminder of their new spouse’s previous relationship.

Attorneys for both sides must be aware of this potential dynamic and, perhaps more importantly, how the parent is dealing with how his or her new spouse is treating the children.

If your client is this parent, you must advise him or her to take whatever action is necessary to create a positive environment for the children while they are in his or her care.  This may mean strongly urging your client to have a difficult conversation with his or her spouse about the treatment of the children.

Your client must be willing to put the interests of the children above his or her own – which, as extreme as it may seem, means putting his or her children before the marriage.