‘Nesting’ Agreements in Divorce | Everything you need to know

Separation from a partner can be extremely difficult, especially when children are part of the equation as divorce can have a huge disruptive effect on them. As a result, some parents are seeking out inventive approaches to lessen emotional distress and facilitate a more seamless transition.

What is a birdnesting arrangement? 

'Birdnesting' or 'nesting' is a living arrangement where children stay in the family home and spend time with each parent there. While the children reside in the family home permanently, the separated parents take turns living there, sharing childcare responsibilities and household expenses.

This concept is inspired by the behaviour of bird parents, who protect their chicks in a nest and take turns caring for them by flying in and out.

Birdnesting couples usually switch between the family home and a more affordable second residence, or sometimes even stay with friends or relatives.

Why do people choose a birdnesting arrangement?

The financial benefits of a birdnesting arrangement are one of the appeals that this method has. Firstly, this approach eliminates the immediate pressure to sell the family home or buy out the ex-partner, thereby avoiding conflicts over mortgages and ownership. Furthermore, separated couples can lower their housing and living expenses by jointly managing these responsibilities.

During divorce proceedings, couples facing high mortgage rates and the current cost-of-living challenges often worry about managing finances to sustain two households with the same resources that previously supported one.

An additional advantage of birdnesting is providing the children with a stable and consistent environment as they reside full-time in the familiar setting of the family home. They can stay close to their friends and family as well as attend the same school and extracurricular activities. By preserving certain aspects of their current routine, parents might reduce the negative effects of divorce on their children's welfare.

Supporters of birdnesting believe it helps parents navigate the major changes post-divorce, shielding the children from upheaval. However, opponents argue that it may confuse children and leave them feeling unsettled.

The legal side to birdnesting

Birdnesting does not directly involve legal procedures. Nonetheless, it is important to consider implications such as financial agreements and determining the children's care arrangements.

If both parties agree to birdnesting, setting up a schedule is essential. It's important to decide when the child or children will be with each parent. Parents can create a parenting plan or, in some cases, a court-approved formal child arrangements order.

There are also various financial implications to consider:

• What is the plan for funding the family home?
• How will the expenses be shared?
• How will the costs of additional homes and their upkeep be managed?
• What is the duration for birdnesting at the property?
• How will the equity be divided when the house is sold in the future?

For success, thorough consideration and agreement from the start are crucial. 

A downside of Birdnesting is that it potentially prolongs couples staying financially connected, delaying a complete separation or clean break.

How does the family court view birdnesting as a co-parenting method? 

Limited information is available on how the family court perceives birdnesting. 

Nevertheless, the primary focus of the court will always be the best interests and well-being of the child(ren) in question. 

In cases where both parents demonstrate an amicable relationship, collaborate effectively, and prioritize co-parenting for their children's welfare, the court is likely to view birdnesting as a sensible arrangement.

How can Hegarty help? 

Birdnesting will not be appropriate in every case and entering into such an arrangement could potential prejudice your property and financial claims when you come to divorce. It is therefore important that you take legal advice before committing to this kind of arrangement. Our Family Law experts will be able to advise you on whether this is an appropriate option in your circumstances and, if it is not, suggest alternatives. 

Birdnesting is usually only a short-term solution, and we will advise you on what in the circumstances would be suitable in the medium to long-term so that your housing needs can be met.