Divorce, career and children
Edith van Ruitenbeek is a lawyer, mediator and partner at Van Hilten Advocaten & Mediators, a practice which specialises in (inter)national family law.
“I shouldn’t have to choose between my kid and my career.” These words, uttered by Victoria Azarenko, one of the best tennis players in the world, recently reached the front pages when she announced that she had to drop out of the US Open this year. This was not due to pregnancy, or the birth of her son Leo, but simply because she is a mum.
Caught in a custody war with Leo’s father, she was not allowed to take her eight-month-old son out of California, where Leo’s father had filed for custody. But she did not want to leave her child behind.
This might appear extreme, especially if you don’t know all the relevant details, but as a family lawyer, I often witness the tough choices clients are faced with, particularly in situations where expats are involved.
Cases in point
For instance, in Dutch jurisprudence, there is a case of a Dutch woman who worked for several NGOs across the world, became pregnant, married the non-Dutch father, and requested leave to give birth in the Netherlands. She stayed there with her young family for a year, before accepting a new post.
Her husband, having neither earned nor saved a penny, filed for divorce in the Netherlands. The divorce, and, of course, a visiting arrangement with the baby, was decided upon by the court.
Unfortunately, in a successive proceeding - after the father had expressed strong opposition - it was also established that the mother would not be allowed to take her child with her, should she accept a new position with an NGO abroad.
I also remember the case of two Dutch professionals living in Houston with their two kids, following several postings across the world. Both had a career.
When the mother filed for divorce in Houston, where she wanted to stay with her new partner, and did not want her two children to move back to the Netherlands pursuant to the father’s new posting, he had to decide whether to continue his career in the Netherlands, or look for a job in Houston and remain in his children’s lives.
Of course, how a family with children wishes to distribute the various responsibilities should be arranged by the parents themselves.
However, in many families, no arrangement is made at all, and the consequences of the daily practices that develop over time are not faced either. This, whilst caring for and raising the children has consequences for the earnings and even the earning capacity of the parents in the long term, as well as for the parents' bond with the children.
Amongst parents, there seems to be a lack of awareness of the need to make an arrangement; with respect to the children but certainly also with respect to each other. The problem, it seems, is that most people do not anticipate the impact of "becoming parents".
When clients ask me for advice regarding prenups before getting married, most of the time they want to make an arrangement concerning existing or future assets. Sometimes they want to know more about spousal maintenance within the margins of the law - but never do these arrangements concern the care and upbringing of any future children; other than that they are to be maintained.
When two young expat professionals come to my table for advice on prenups, one of my first questions is whether they have thought about how they will share the tasks within the family once children are born, and the consequences this will have in terms of personal development - such as for their career, earning and saving capacity, as well as for their self-esteem and of course, the chance to bond with the children.
Young professional women especially think that they are "strong enough to do both" or that, "naturally, we will share the tasks, as we both have excellent degrees and careers and will love our children equally".
The "when the time comes, we will see" mentality often works. However, it can also backfire for both parties. Especially, when the many unwritten rules that they take for granted are not explicitly expressed to their partner.
The caring and upbringing of children is not to be underestimated. Nor can it be covered in any contract. However, some intentions can and should be expressed more clearly by (future) parents - both concerning their responsibility towards the children as well as towards each other.
At my mediation table, I always insist on including the parents’ intentions regarding the care and upbringing of the children in the context of their respective career moves in the divorce covenant, especially when this is between expats. Especially in a covenant between expats. Parents, as well as children, should have some clue about what to expect so that they can live their lives.
Often, I find myself empowering clients, which I gladly do, in discovering their options, either when it comes to making use of their earning capacity and / or to sharing more care and upbringing tasks. A plan geared towards the future of all the family members must be made.
Unfortunately, a small percentage cannot be empowered; due to health problems, but sometimes also due to behavioural problems or even conduct disorders on the side of at least one of the parents.
“No one should have to decide between a child and their career, as we are strong enough to do both,” is what Azarenka said. Probably, though, life is not about being strong enough or thinking that you are strong enough. Like Darwin said, “It is not the strongest who survives, neither the smartest, but the one who copes best with changes”. Some legal advice might help as well.
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