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Episode 86 Transcript: Vacationing Post Divorce

In today’s mini-episode, I wanted to talk to you about the concept of taking vacation with your kids and how a divorce agreement speaks to that once you have separated your households and are going to be taking vacations separately as a family.

First of all, let me just give you the context that it would come up in the custody section of your agreement to talk about vacation plans in the future. As a result of that, if you do not have kids under the age of 18, this is not relevant for you in a legal sense. Obviously, if you have kids, taking vacation with your kids is still relevant for you but from a legal perspective, once your kids are no longer under 18, your divorce agreement will not speak to or will not regulate parenting issues. Vacationing with your kids is included in the section of your agreement on parenting or on custody.

Let me speak briefly to what a section on vacations within your custody article or agreement would cover. First of all, let me say what it won’t cover. What it won’t cover is, number one, there won’t be any requirement for you, even if you plan to, to vacation together as a family. Again, you and your ex may plan to continue a particular family vacation, taking that together as you have done in years past, but your legal contract will never obligate you to vacation together. If you can’t mutually agree at the time in the future to vacation together, probably a joint vacation is not a good idea. It’s not something that we would legally require. So, number one thing that a vacation section will not cover is any kind of mandate to vacation together as a family.

The second thing that the vacation section of your agreement will not cover is a requirement that you plan out every single vacation from here until your kids turn 18, obviously not. Well, maybe you could do that because you do the same vacation every year, but for most people they don’t know, and so we don’t speak to that.

Things that we do speak to when it comes to vacation are, number one, what amount of vacation, what amount of time is each parent allowed to take as vacation with their kid? Let me explain why that’s important. The main part of your parenting or custody section in your agreement speaks to your schedule with your kids. The schedule it lays out for you is a typical weekday and weekend schedule. You may not have a 50/50 custody arrangement, but even if you don’t, both parents generally are scheduled to see their kids multiple days in a given week.

Now, if you observed a schedule like that 52 weeks a year, you would never be able to take vacation with your kids any longer than the days that you are allotted with them each week. So that would make for some pretty short vacations. For most people, they do want to have the opportunity to take a longer vacation with their kids. Often in the summer generally is what we’re speaking about. So, we need to include a section on vacations that says, “Each parent is entitled to take x amount of time with their kids as vacation. That vacation time will supersede the schedule that we laid out above the regular schedule.” So it takes precedence over the regular schedule.

Now, when we talk about the amount of time that a parent is entitled to take as vacation with their kids, we talk about that in two ways. One is the total amount of time you are allowed to take vacation with your kids, and the other is the total amount of time you can take consecutively with your kids. Let me give you an example to concretize that. Your agreement could allow you to take two weeks of vacation with your kids every year total, but it might also say that you will not take more than one week of consecutive time. You couldn’t take the two weeks together. You could take two weeks total, but they’d have to be separated, no longer than one week throughout the summer. You want to think about specifically what kinds of vacations you want to be taking. Are they the kind of vacation that you could take within one week? Do you want to try to negotiate the ability to take more than a week consecutively with your kids? And total, what is the amount of vacation time? However long consecutively you’re allowed to take, what is the total amount of vacation time you’d like to be able to take with your kids in a given summer?

Part of what’s going to influence your thinking there when it comes to consecutive time is going to be primarily the age of your kids. How long are they going to be able to tolerate and should they be away from the other parent consecutively? You also want to consider how new the divorce is and how new vacationing separately is. If it’s the first year that you’re vacationing with your kids without your co-parent, you may agree to take a shorter amount of time consecutively or a shorter total amount of time, and you may transition to a longer amount of time in subsequent years when your kids have had a chance to adjust to vacationing separately with each of their parents. That may be totally not relevant for your kids. They may be used to taking trips separately with each of you, and you may be able to commence with whatever vacation schedule you agree to right from the get-go.

The other thing that will influence parents thinking about the agreements they make around vacation is what they anticipate their kids’ schedules, their kids’ summer schedules will be. If your kids go to camp for six weeks every summer, you know that you’re only talking about approximately four total weeks to divide between the parents for vacation time. You want to be mindful of that and not say, for instance, that each parent has the right to take four weeks of vacation with the kid in the summer and the kid is going to summer camp for six weeks. That won’t fit into the kid’s summer. This is something that many parents think about, just intuitively already have a sense of. It’s just something I want to put on your radar. Think about the kinds of activities that you have your kids signed up for and enrolled in for the summer, if any, and how vacation time can fit around those.

You also want to clarify, if you anticipate that this could be an issue, whether or not a parent is able to take vacation time with a kid when they are already enrolled in an activity. For sleepaway camp, most parents share the sense that that would not be a time when parents could take the kid out of sleepaway camp to go on a vacation with one of the parents. I think in part because of often how expensive it is, so parents don’t want to waste the money, or deprive their kid of that important, valuable time with their friends at sleepaway camp. But what if your kid is enrolled in some kind of day camp locally or some kind of science day camp or soccer camp locally? Not sleepaway. They’re still spending overnights with both parents as they would in a regular schedule. You want to clarify, “Is a parent able to elect to take the child out of scheduled activities for the summer that you’ve already paid for and vacation with the child?” And the answer may be yes, or it may be no, but it could be something that is useful to clarify both your expectations around and also to clarify in your agreement with regard to each parent’s vacation rights.

A couple of other things that are or can be useful to clarify in your agreement and also just in terms of your mutual understanding between each other as co-parents. One is how much notice does each of you want in advance of the other parent’s vacation dates? Do you want to know by May 1st or March 15th? Some of that will be a function of when you want to be able to make your own summer vacation plans for the year. Having some agreed upon date as to when you let the other parent know in advance of the summer your chosen vacation dates is really helpful.

The other thing that’s helpful is what if you want to vacation on the same dates? Specifying that you will alternate years of having preference or first choice of vacation dates in a given summer is also useful. That said, you don’t have to alternate first choice. It may be the case because of arrangements with someone’s family or somebody having relatives they want to visit who are a far distance away and have very restricted schedule that maybe you agree that one parent has the first choice of summer vacation dates every year. Perhaps because that parent has a very demanding work schedule, they get the first choice of summer vacation dates, and they have to notify the other parent by (I’m making this up) March 15th. And then the other parent has their choice of the remaining vacation dates, and they have to notify the first parent by April 1st, April 15th, whatever. This could happen earlier in the year. It could happen later in the year. Really, that depends very much on your own schedules and just habits around planning your summer vacation. Clarifying who has the first choice of dates in the event that you both want the same ones is very useful.

Less common to specify, but some people would choose to, is to make a commitment around notifying the other parent of your travel information. I say that’s less common because typically we have a separate mini-section in your agreement that speaks to each parent’s obligation to let the other parent know of any travel with the kids and of travel itinerary and contact information. Sometimes people want to specify that with regard to vacation.

Then sometimes if you anticipate that the vacation may involve certain adults, like a new significant other or family members of the traveling parent whom the other parent has a concern about. Sometimes people will include in their agreement either a prohibition on traveling with a certain person for a certain period of time. There, I’m really thinking of a newer significant other. You may say no travel for the first summer with a parent’s significant other, just to give the kids a chance to transition. It would be very uncommon that that would be an ongoing prohibition, but it’s something that certain couples may want to include earlier on in the years following signing their divorce agreement.

The other issue that people sometimes will speak to, if for instance, the traveling parent is going to visit family and there’s a family member that the other parent has a concern about, you might make an agreement that if this parent is traveling to visit family or if the kids are going to be in the presence of this family member, that the traveling parent will be physically present with them at all times. I wouldn’t say that’s common, but sometimes it’s relevant to your situation and can be helpful to not only have a mutual understanding of that commitment between the two of you as co-parents, but also to have it formalized and included as a legal obligation in your agreement.

Finally, apropos not of vacation with the children but vacation without, sometimes people will include in the agreement that each parent has the right to vacation without the children for a week or even up to two weeks in a year. I can’t say that I’ve seen much more than two weeks in a year. The gist of that is that it may be important to you to be able to have vacation time away from your kids. In order to do that, if you have a parenting schedule that involves you seeing your kids multiple times, having your kids with you overnight multiple times in a week, you either will need to put childcare in place if you are planning to go away and travel, or you’ll need to coordinate with your co-parent. I would say where people have a really strong preference that they would not have the kids with a nanny or a sitter overnight for a week or more while the scheduled parent is traveling, they may choose to include in the agreement that with x number of months or weeks notice, either parent can take up to one week of travel vacation without the children, during which time the other parent will be solely responsible for the kids. You may want to include that in your agreement so that you have the ability to take that time for yourself going forward.

That was our mini-episode on vacationing with your kids and without your kids. I hope it was helpful for you.

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