Ask Stacy (Spring 2025) – Surviving the Battlefield of Divorce

March is synonymous with the start of spring and the end of the cold winter months—at least for those who do not live here in sunny Southern California, where it is perpetually spring-like year-round (even though it was colder and rainy later this winter). According to the Old Farmer’s Almanac, March is named after the Roman God of war, Mars, because this was the time of year when military campaigns would resume after having been interrupted by winter. That does not exactly conjure up visions of tulips triumphantly bursting through the warming soil and songbirds chirping away on newly budded tree branches.

While I do not typically dwell on the topic of war, some have compared divorce to a battlefield. Hostilities sometimes break out between the two sides, which brings us to your questions this month.

ASK STACY: Can my ex-wife repeatedly return to court to ask for more support, and if so, will she be successful?

MY THOUGHTS: Your ex can return to court as often as she wishes, but that doesn't guarantee she will be successful. It partly depends on the findings in your Judgment, such as her income, your income, and the support amount based on that income. Additionally, was there a finding in the Judgment that the support met the marital standard of living? If the support met the marital standard of living, it would be capped at that level. The Family Law Statute outlines many factors, making this somewhat complicated.

ASK STACY: During the divorce, my wife stayed in the house, while I moved out, but I have custodial rights with the children. When I came to pick up the kids, I noticed that my wife was giving away some of our joint property, such as artwork and furniture. Can I go into the house and take items before she can give them away?

MY THOUGHTS: Under California law, when somebody files for divorce and the responding party is served, both sides are bound by automatic temporary restraining orders (often referred to as the ATROS) that prohibit giving away, selling, or transferring any community property, quasi-community property, or separate property, among other such restraining orders. This Order also applies to artwork and furniture. The only exceptions would be if one party needed money for the necessities of life (like to buy food, to pay the mortgage, or cover utility bills, etc.), in the ordinary course of business (e.g., a capital call in a prior joint investment) or to pay one’s attorneys’ fees. However, selling the joint property for pocket money would violate the ATROS. I recommend discussing this situation with your lawyer, who will devise a methodology to deal with how, why, and what she is taking, so you can be reimbursed, if appropriate, given the facts. Lastly, I would not suggest just going into the house and taking back items—that may be considered theft.

ASK STACY: I am an attorney, and I’m going through a divorce. My spouse inadvertently mailed me a statement that shows he has substantial funds that were not disclosed to the court by his attorney. What do you think about filing a civil RICO action against them both?

MY THOUGHTS: Family Law Court has a statutory scheme where if somebody does not disclose to the court any assets or liabilities, there is a process where you can share that with the court, and at its extreme, get the whole asset, for example, awarded to you. This scheme acts as a form of punitive damages. In my opinion, filing a civil RICO action is taking things too far. I suggest you discuss the situation with your attorney. You assume that opposing counsel knew that your spouse was hiding things, which is generally not true. It is more likely that your spouse hid this from their attorney, because if the attorney did know, that would be a serious offense. Most attorneys are not going to risk disbarment for a client.

ASK STACY: In the divorce, I got full custody of the kids, but I didn’t ask for child support. One year after the divorce was finalized, my ex-wife is now asking for additional alimony. Can I ask for child support retroactively?

MY THOUGHTS: You can always ask for child support if you are not receiving Guideline child support. But the question is: Based on both of your incomes, your time share, and other statutory factors, should you, pursuant to the statutory schema, be receiving Guideline child support? Before you go headfirst asking for Guideline child support, you should have your attorney (and forensic accountant(s), if you have them) do the calculations ascertaining whether you would be entitled to Guideline child support and how much. You should do a cost-benefit analysis. If you are entitled to Guideline child support and if you request it, then the Court is mandated to give it to you at the Guideline amount the court determines is the correct amount.

ASK STACY: My husband has threatened to ignore the divorce Petition I had served on him. If he does, can I get a default judgment? How does that work?

MY THOUGHTS: If, after being served, your husband does not respond, then you can make a motion for a default, and set a trial on your default. That is the process you will follow.

ASK STACY: What are the rules about fraud in order to get an annulment? Do I still need an attorney for that?

MY THOUGHTS: In California, and this may surprise many people, the rules for an annulment, on the grounds of fraud, are very specific. The fraud must go to the heart or essence of the marriage. Examples of this are one spouse persuaded the other to marry because of a secret desire to remain in the United States, one person would not consummate the marriage, or one spouse refused to have children after agreeing to have children. Conversely, if one person has committed financial fraud that does not go to the heart of the marriage; therefore, that is not grounds for an annulment, as frustrating as that may be. Annulments are not easy to prove. Will your ex agree (stipulate) to an annulment? And even if you have such an agreement, processing the paperwork is complicated, so I always recommend having a lawyer representing you.

ASK STACY: I am getting divorced in California and wondering how long spousal support typically lasts. How are the amount and length of spousal support determined?

MY THOUGHTS: We have a 10-year rule in California, which means that a marriage lasting 10 years or more is considered a marriage of long duration, where support would be until either party's death, remarriage of the recipient party, or the registration as a domestic partner of the recipient party. If your marriage is less than 10 years, then a host of factors apply, but the duration is generally one-half the length of the marriage. There can be contributing factors that will make that support shorter or longer. So, you should talk to a lawyer to see how the facts and the law merge in your favor (or not).

ASK STACY: My ex-wife is receiving alimony from me. I have just learned that her boyfriend has officially moved in with her. Is that grounds for ending the support payments, or do they have to get married first?

MY THOUGHTS: In California, living with someone is not, by itself, a terminating factor for ending support. A terminating factor includes what you agree to in your Judgment, as well as your death, your ex-wife’s death, or your ex-wife’s remarriage or registration as a domestic partner. Therefore, moving in together does not automatically qualify; however, under the Family Law statute, another person's potential sharing of expenses may serve as a reducing factor, though this is not automatic. In this case, you would need to present your arguments to the court and hope the court agrees to reduce support.

ASK STACY: Have you ever fired a divorce client because you realized you didn’t like them or their behavior?

MY THOUGHTS: I have fired clients because I believed they were not being truthful or admitted to dishonesty. I have also parted ways with clients when I felt they had unreasonable expectations that could not be met. For example, I once had a client who insisted she wanted to receive 100 percent of her husband's paycheck and sought 100 percent custody of the children. That was not a realistic option. Another instance occurred when I discovered that a client had maintained double books. Once that information was shared with me, as that client’s counsel, I was legally obligated to disclose it. (I would have no ongoing obligation if I were no longer that client’s counsel.) I have also terminated clients based on how they treat their children. Frankly, I never want to be involved in a custody case where I do not believe I am on the right side.

Please note: The content and views expressed here are my own and do not reflect or represent the positions, strategies, views, or opinions of Blank Rome LLP.