Ask Stacy – What Your Garden Can Teach You About Divorce

Just the other day, I noticed how lush the flowers and trees in front of my house have become. So many plants are either blooming or on their way to blooming. Here in Southern California, we had a very short winter and then leaped directly into summer. And all of our plants have been tricked into thinking it is time to put on a show! Honestly, I do not mind. It is all very lovely. And I think there is a lesson here for those going through a divorce. While divorce is often one of the hardest things any of us has to go through, it is important to remember it is just one season of our lives. It may be difficult to do in the midst of the emotional pain and anguish, but maintaining perspective can be very helpful. Remember, this too shall pass, and the next season in your life will soon arrive with all the possibilities it holds. Just like your garden, you too can bloom again and find happiness within yourself, if you are willing to put in the hard work to get there.

Now, let us tackle some recent questions:

ASK STACY: In celebrity divorces, does the court consider a spouse's potential future success when deciding on the amount of support? How do family law judges account for future earning potential that changes over time?

MY THOUGHTS: When setting spousal or child support, the court looks at the person’s income, generally based on the last 12 months. If someone’s income fluctuates significantly, for example, because of entertainment industry work, the court may instead look at a three-year or five-year average. Courts do not base present support on speculative future income unless there is an actual contract showing what the person will be paid over time. It is important to note that the court may modify the support at a later time if income changes. For spousal support to be changed, a material change of circumstances will be required. Here in California, such spousal support is capped by the marital standard of living. Child support is also modifiable, and a child can share in increases in a parent’s income.

ASK STACY: I often hear couples say they are divorcing due to irreconcilable differences. What constitutes irreconcilable differences in the view of the court in California?

MY THOUGHTS: In California, “irreconcilable differences” is simply the phrase used on the divorce petition. There is no special legal definition beyond the fact that the parties no longer get along and no longer wish to remain married. In short, no one will second-guess the reasons for the divorce. In that sense, getting divorced in California is straightforward regarding the grounds for filing. Still, it often becomes more complicated when dealing with the division of assets, support, custody, and attorneys’ fees.

ASK STACY: In People magazine last month, they reported that Summer Heather Worden, the ex-wife of NASA astronaut Anne McClain, has been sentenced to prison for falsely accusing McClain of illegally accessing Worden’s personal bank account while on the International Space Station during their divorce. Would this have been considered illegal if it were a joint account?

MY THOUGHTS: Well, this is officially my first question about a legal matter that is out of this world. Seriously, though, accessing a separate-property personal bank account belonging to the other spouse is different than accessing a joint account. Accessing a joint account that has your name on it, whether you are in the next town over or aboard the Space Station, is not illegal access. A joint account owner is entitled to check the balance and access the funds. However, if one spouse took all the money in the joint account, that might give rise to a breach-of-fiduciary claim by the other spouse, of course, depending on the facts. If the account were separate property, that would be a different story. Accessing such an account without permission would be illegal.

ASK STACY: In California, what actually happens if one spouse moves out of the family home before anything is filed? Does that decision carry legal consequences?

MY THOUGHTS: I have had clients tell me they were worried about moving out of their home for fear that it would mean giving up their rights to the house. I tell them that is not the case in California. The bigger concern is practical and not based on ownership. If there are children, moving out before custody and support arrangements are in place can make it harder to maintain access to the children if they stay behind. It can also create financial problems, especially if the person who moves out does not yet have a support order and the other spouse is being difficult. This highlights something I call weighing “life decisions” against “divorce decisions.” In some cases, it may be strategically better to stay in the home, but if safety is at issue, leaving is always more important. In domestic violence situations, the safer option may be to seek court intervention to have the abusive party removed.

ASK STACY: My cousin is a family law attorney, and whenever we are at a family gathering, he is always regaling us with crazy stories about what goes on with his clients in his divorce cases. He never mentions any client names, but I wonder if he is violating any ethics rules by sharing this deeply embarrassing stuff?

MY THOUGHTS: If your cousin’s stories do not reveal details that could identify his client, then it is probably ethically okay. Although court filings are already public records, if there is a way to identify the client from those stories, then he should not be sharing them. Client confidentiality is a bedrock principle. To clarify, there are differences in the types of lawyers. Lawyers who present their cases to juries are generally storytellers. While strong storytelling can add flair to their presentation, good lawyers know how to tell that story while staying accurate on the facts and avoiding exaggeration. By contrast, family law attorneys tend to use a more by-the-book approach, as most states do not have juries in family law cases; these proceedings are handled by a judge.

ASK STACY: I’m considering entering family law. Are there any skills beyond a strong understanding of the law that you believe make for an effective lawyer in this field?

MY THOUGHTS: A good lawyer’s skills go way beyond their understanding of the law. In family law, especially, a lawyer must be able to apply the law to the facts and the facts to the law, understand nuance, write well, listen carefully, and advocate effectively. Empathy and emotional intelligence are also essential qualities. Family law clients often face intensely personal and painful experiences, so technical competence alone is not enough. Clients often want a lawyer who genuinely cares.

ASK STACY: I know you are not a therapist, but with your extensive experience, I am sure you have seen everything. What are some of the warning signs that a divorce is shifting from difficult to psychologically abusive, and how do you counsel your client to protect themselves legally?

MY THOUGHTS: I start by listening closely to what the client says their spouse has done or said, then I watch how the client reacts to sharing this information. If the client appears unable to function or emotionally crushed, that often signals something deeper is going on. In asking questions, I am trying to determine whether the conduct of their spouse amounts to gaslighting, emotional abuse, psychological abuse, or physical abuse. In my experience, clients who have experienced domestic violence often do not disclose it easily. Sometimes it can take hours, days, or longer, and repeated conversations to uncover the full story because victims may feel ashamed or afraid. My approach is to keep observing, ask careful questions, and avoid being judgmental so the client feels safe enough to disclose what is really happening.

In California, in intimate partner relationships, domestic violence includes interfering with one’s emotional calm. Domestic violence can include physical violence and coercive control. This is a broad definition, but one needs to prove one’s case with very specific examples.

ASK STACY: I am guessing you put your own personal political views aside when working with clients. Have you ever turned down representing a client because their views were so heinous that you could not overlook them?

MY THOUGHTS: I never refuse clients based on political views. By the same token, I generally avoid discussing politics with my clients, especially if they hold views different from my own. What matters most to me is how clients treat the process, their spouse, their children, my colleagues, and everyone around them. If I learn that a client’s treatment of their children is abusive, I will not hesitate to fire them. I also will not hesitate to fire clients who are abusive to my colleagues. In short, I can always overlook political disagreements, but conduct and integrity are non-negotiable.

ASK STACY: I realize this is a bit of a frivolous question, but I have read that you are into fashion. On TV and in the movies, lawyers are almost always immaculately dressed. Is it the same in real-life courtrooms?

MY THOUGHTS: Some lawyers are immaculately dressed, and some are not. It is a personal preference. I do have a passion for fashion, and I enjoy looking my best, particularly in the courtroom. It is a point of pride for me. The truth of the matter is, what you see fashion-wise in court on any given day is really just a microcosm of society.

ASK STACY: If my spouse and I agree informally on support and custody but never put it into a court order, what risks am I taking under California law?

MY THOUGHTS: The risks of not having a legally binding agreement are significant. In the case of custody and support, if your spouse decides to keep the children in opposition to what you had agreed to, you cannot go to the police and enforce an unwritten agreement as though it were a court order. With regard to support, if your spouse stops voluntarily paying, you may have to go to court to obtain enforceable support. Without an existing court order, a party seeking a different support amount must show a material change of circumstances. If an order were already in place, this would not be necessary. While an established status quo can have some persuasive value, it will not carry much weight if the amount being paid is far below what the court would consider appropriate. These are some of the risks you would be running by having an informal agreement. I would counsel against it.

ASK STACY: My husband recently deployed to the Middle East. Our marriage was in trouble before he left, but I feel guilty filing for divorce under these circumstances. Should I wait until he gets back?

MY THOUGHTS: There is no question that military deployment can strain a marriage. In your case, where you described the marriage as already failing, I can see why you might feel trapped. You cannot move on with your life until this is settled, but you are also sensitive to the emotional strain this will add to your husband. This is a good example of the kinds of difficult human circumstances that couples bring into the divorce process. I cannot tell you what the right thing to do is here. If you were my client, I would support whatever decision you decided to make.

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.