Ask Stacy – Surviving the Chill of Divorce

As we move from winter into spring, many parts of the country are still contending with lingering chilly weather. For many, divorce is a bit like such inclement conditions - chilling the spirits of all involved. The emotional toll taken by divorce is undeniable. I see it every single day when working with my clients. I encourage them not to become consumed by the stresses and strains, but that is always easier said than done. I advocate for clients to engage a therapist to help them process their emotions. Much like the weather, it is important to remember that better days—like spring—are just ahead if you are willing to work toward them. Seeking professional help is a good way to protect your own health.

With that thought, let us move on to your questions:

ASK STACY: My husband and I are in the process of getting divorced because we’ve grown apart. Our combined salaries barely cover our household expenses. I am terrified that I will not be able to adequately take care of our two children, even with support from him. Am I making a mistake getting divorced?

MY THOUGHTS: I am reluctant to give you advice here. Obviously, deciding to get divorced is an emotional decision, as well as a financial one. Some people remain married because they do not want to risk running out of money. I acknowledge that divorce is scary, though my personal philosophy is that you only live once, and you should want to live the best life you can. But if you are either outwardly fighting or in a cold war where you are distant toward each other and do not show any affection, then you are probably not being a very good role model for your children.

If your spouse's income is about the same as yours, it is unlikely that you will receive spousal support. Child support is generally determined based on the timesharing arrangement of your children. When both parties have similar incomes, support obligations are typically minimal.

ASK STACY: Whenever the judge rules in our divorce case, I feel like he is always siding with my husband. My attorney tells me there is nothing we can do, even if the judge is biased. Is he correct?

MY THOUGHTS: Judges come to conclusions based on what is before them. Of course, they are human just like the rest of us, but they do take an oath of impartiality. If the judge comes to a ruling in an appropriate way, even if you do not like the decision, there is no recourse. That is simply their interpretation. If the decision is wrong on the law, then it is potentially reversible. Appellate courts give trial courts great discretion. This does not mean decisions are never reversed. But it is important to keep in mind that appeals are very expensive. And sometimes it is just best to move on.

ASK STACY: I just read on Instagram that you are engaged. First off, congratulations. As a divorce attorney who deals with failed marriages daily, were you at all hesitant to marry again?

MY THOUGHTS: I am a hopeless romantic, and I believe with all my heart that marriage can work if both partners are committed to it. Plus, I have learned some invaluable lessons from my past marriages. I am still close with one of those ex-husbands. And I have learned some great lessons from my second failed marriage that might one day lead to a book. Stay tuned!

ASK STACY: What legal strategies are most effective when one spouse intentionally delays proceedings, stonewalls discovery and disclosure to gain a psychological edge?

MY THOUGHTS: There is no short answer to this question. If the spouse or the spouse’s attorney stonewalls discovery and disclosure, then you can go to court and compel them to produce documents, answer interrogatories, and requests for admission, if those discovery demands have not been replied to in a timely or appropriate manner. This process is time-consuming and expensive. Lawyers can intentionally slow roll things, asking for continuances, all without violating the rules. In response, your lawyer can seek a trial date, but if they do not have all the documents, that makes it more complicated.

ASK STACY: Do prenuptial agreements ever fail in court, and what are the most common drafting mistakes that make them vulnerable?

MY THOUGHTS: Yes. If the agreement does not comply with the requirements of the Uniform Prenuptial Agreement Act and the specific statute and case law in your state, a prenup can be set aside. Let me first explain what the Act is. The UPAA creates consistent standards for the validity, enforceability, and content of prenuptial agreements across most of the U.S. Its purpose is to ensure that agreements made in one state are generally recognized in others. The Act states that agreements must be in writing and signed voluntarily by both parties. Both parties must make a full and fair disclosure of their assets, debts, and income before signing. An agreement may be unenforceable if it was unconscionable (grossly unfair) at the time it was signed. The Act covers property division, spousal support, and management of finances, but cannot determine child support or custody.

A prenup can be set aside if there is fraud, duress, or a lack of full disclosure. For example, in California, the last version of the prenup, without any changes, must be provided at least seven days before it is signed; if fewer than seven days, it can be set aside as well. The most common drafting mistake is a lack of clarity and follow-through on the terms. It is important to note that some states are more demanding than others. This is why you must talk to a lawyer in your jurisdiction and make sure that, if you do a prenuptial agreement, you carefully follow the rules of that jurisdiction.

ASK STACY: Are there any circumstances in which attorney-client communications become discoverable in divorce litigation?

MY THOUGHTS: Yes. Attorney-client communications may be discoverable if the client waives them. Sometimes there is no privilege because other people are present during a communication. If someone is on the phone with their lawyer and has someone sitting with them who is not considered a helper, there is no privilege.

Another example is that if the litigant forwards privileged documents to others, or if there has been a waiver in pleadings filed with the court, the communication may be discoverable by the other side. This highlights why you have to be very careful what you send to anyone other than your attorney.

ASK STACY: How does family court handle custody disputes when one parent’s career requires constant travel or international filming schedules?

MY THOUGHTS: Depending on the child's age, the court may allow the child or children to visit a set. There is usually an effort by the court to give that parent time with the children, but it is not easy when international travel is involved. I recommend making up time when the parent is back in town. When it comes to working difficult scheduling problems, it is best if both parents can cooperate so that the children have meaningful time with both their parents.

ASK STACY: How do judges evaluate credibility when both spouses present radically different interpretations of the same financial or parenting facts?

MY THOUGHTS: There are several parts to your question. One is the credibility of each spouse. And two, are there any third-party witnesses who observed or were given information? For instance, if a third person, such as a child, nanny, or other person, was present and heard the interaction or observed the spouses, then what that person says and their credibility will be evaluated by the court. Often, kids are witnesses to their parents' domestic violence, and what they see or hear can rule the day. Ultimately, when radically different viewpoints are present, it is up to the trier of fact (in California family law cases, the judge) to make a determination. When it comes to experts presenting facts, the judge will draw their own conclusion.

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.