Ask Stacy -- Yes, I Still Believe in Marriage

As a family law attorney, I have spent my entire career sitting across from people at the end of their marriages. I have seen the worst of it. The anger, the exhaustion, the grief that people do not expect to feel over a relationship they were desperate to leave. Given all of that, people are sometimes surprised that I still believe in marriage as an institution. I do, without reservation. 

Last month, I married the person I love, Brad Sharp, and I did it with my eyes wide open about everything that can go wrong, because I am a romantic at heart and I value the institution of marriage and the power of love and commitment. 

I often tell my clients that the end of a marriage is not proof that love does not work. It is proof that this particular marriage, at this particular time, with this particular person, did not work. Those are very different things. I have watched people leave devastating marriages and go on to build the kind of partnership they did not know was possible. I have also watched people rebuild a full and happy life on their own, with no partner at all, and want for nothing. Both are proof that hope was not wasted on them. If you are in the middle of a divorce right now, I want you to hear this from someone who has stood exactly where you are standing 14 years ago and walked down the aisle anyway. This chapter's ending does not mean the story is over.

And on that note, let us take a look at your questions:

ASK STACY: Stacy, I have read in the tabloids that celebrity prenups sometimes include penalty clauses, such as a payout if one spouse cheats, rules about staying in shape, etc. My fiancé wants something similar for ours. Would a California court actually enforce a "bad behavior" clause, or is that just Hollywood theater?

MY THOUGHTS: California is a no-fault divorce state, so a judge is not going to enforce a clause that punishes someone for gaining weight or having an affair, because fault does not drive the outcome of a California divorce to begin with. I have reviewed hundreds of premarital agreements over the course of my career, and I have never once seen a "bad behavior" clause make it into a real, enforceable document. Personally, I would never be a party to such a clause. Attorneys who know California law will not draft one because they know it will not hold up. What the tabloids describe is entertainment, not legal strategy. If your fiancé wants real protection, focus the agreement on property, debt, and support terms a court will actually recognize.

ASK STACY: My soon-to-be ex is very tech-savvy, and I am genuinely worried he could cook up AI-generated videos or fake text messages to make me look unstable in our custody fight. This deepfake technology is everywhere now. How do family courts handle evidence that might be completely fabricated, and how would I even prove a clip is not real?

MY THOUGHTS: Family court judges are not naive about AI, and this is quickly becoming familiar territory. If a video or text message was fabricated, that manipulation is often detectable, whether through visual inconsistencies or forensic analysis of metadata. Your attorney can retain a forensic expert to examine suspicious evidence and testify about how it was created. You can also depose the person who produced it and ask direct questions under oath. He may lie, but a strong deposition combined with expert analysis builds a record the judge can rely on. Save everything, document timestamps, and flag anything that looks off the moment you see it.

ASK STACY: A famous couple I follow announced that after their split, the kids would stay put in the family house while the parents took turns moving in and out. They called it "nesting." Is that a real arrangement a family court would sign off on? What is your view on this type of arrangement?

MY THOUGHTS: Nesting can work. I have done it myself. But it should only be a temporary solution. I have handled cases where parents chose it, and I can tell you plainly that a court will not order it without both parents first agreeing to it in a stipulation. This only works when the adults involved can still communicate and cooperate, because you are essentially sharing one household on a rotating basis. In my opinion, stretching a nesting arrangement much beyond a year usually creates more strain than stability. Every family is different, though, and the right timeline depends on your specific circumstances.

ASK STACY: Our 11-year-old has booked a few national commercials and a recurring TV role, and her earnings sit in a protected minor's account. Now my husband and I are divorcing. Who controls that money during and after the divorce, and can either of us tap it for household bills or legal fees?

MY THOUGHTS: That money belongs to your daughter, not to either of you. California's Coogan Law requires that a portion of a minor's entertainment earnings be placed in a blocked trust account that neither parent can access for personal expenses, including legal fees or household bills. During your divorce, you and your husband will need to agree on who manages that account going forward, or the court will decide for you. This usually means someone is appointed to oversee her financial interests separately from yours. I would strongly recommend consulting an attorney who specializes in entertainment law for minors, since this is a narrow and specific area.

ASK STACY: We skipped a prenup when we married eight years ago, and now that my business has taken off, my husband and I both think some ground rules would help us feel secure. Can a married couple still put an agreement like this in place after the wedding?

MY THOUGHTS: Yes, you absolutely can, and it is called a postnuptial agreement. The catch is that the rules get stricter once you are already married. Spouses owe each other a fiduciary duty during marriage that does not exist before the wedding, so full and honest disclosure is even more important the under a prenup. Given that you are eight years into this marriage and your business has grown substantially, I would encourage you both to work with separate counsel and take real care in drafting these terms. Rushing this kind of agreement is how postnups end up challenged later.

ASK STACY: If a couple agrees to the terms of a prenup and signs it, does it go to court for review, or is it just automatically signed and sealed?

MY THOUGHTS: No court reviews a prenup when you sign it. There is no filing, no hearing, no judge checking your math. A prenup is a contract between two consenting adults, and presuming it is properly and fully executed, it takes effect upon marriage, with the exception of certain clauses that may have been set forth in the contract to take effect even if the marriage does not happen. A judge reads the document only if it later comes before the court, usually because a couple is divorcing and one spouse seeks to set aside the entire agreement based on fraud, duress, etc., or one spouse wants to enforce a term that was not followed or challenge one. At that point, the judge either approves or rejects the agreement as a whole, or the judge is interpreting specific language, deciding what a clause means and whether it should control the outcome on that issue. Until that day comes, if it ever does, the agreement sits quietly in a drawer, doing exactly what any other signed contract does.

ASK STACY: My husband and I come from different faiths, and we are divorcing. We always clashed over how to raise the children religiously, and there is no compromise in sight. Can a court actually decide which religion our kids are raised in, or does that fall to whoever ends up with custody?

MY THOUGHTS: A court will not decide which religion your children are raised in. That decision sits outside the boundaries of what a family law judge can rule on, and for good reason. The separation between church and state applies here just as it does everywhere else. In practice, though, religious upbringing is often shaped more by whoever has the children, simply because that parent controls the day-to-day choices during their custodial periods. People also change their minds about faith over the years, even when they agreed on something before the divorce. My honest advice is to work this out between yourselves, or with the help of a mediator, rather than hoping a judge will settle it for you.

ASK STACY: Every accomplished attorney seems to have a case that humbled them. Was there an early failure or loss that taught you more than any win ever did? And when you mentor younger lawyers, how do you walk them through their first real defeat?

MY THOUGHTS: I do not know if I would call it humbling, exactly, but I have certainly learned from cases that did not go the way I expected, or, as in one example, the judge telling both sets of counsel in his chambers the way he was thinking before he went on the bench and ruled! That one loss, in particular, still does not make complete sense to me. It was the first time I appeared before that judge, and I walked out of his courtroom convinced he did not think much of me. Then he sent me a letter, the first of many I would receive from him over the years, every time I won an award afterward. I misjudged him entirely, and it taught me something important. Nobody can guarantee an outcome in a courtroom. Anyone who tells a client otherwise is not being honest with them. When I mentor younger lawyers, that is exactly what I tell them. Make the best decisions you can with the facts in front of you, understand that a trial is always a risk, and do not let one loss convince you that you read the case wrong.

ASK STACY: Our youngest son has a severe disability and will need care and supervision for the rest of his life, long past the age at which most child support ends. As my husband and I divorce, how do we build a settlement that protects our son's lifetime needs?

MY THOUGHTS: Support for a child with a lifelong disability does not have to stop at eighteen. California allows child support to continue past the age of majority when a child is unable to support themselves due to a disability that existed before adulthood. Beyond ongoing support, you can also set aside funds in a special needs trust, which protects your son's financial future without disqualifying him from government benefits he may need later in life. Structuring this correctly takes real coordination between your family law attorney, an estate planning attorney, and a financial advisor who understands special needs planning. I would start building that team now, before the settlement terms are finalized, so the plan holds up for the rest of his life.

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.