July Ask Stacy – Avoiding the Fireworks of Divorce and Other Tips

You always know summer is underway after celebrating the Fourth of July and looking forward to Labor Day! Setting off fireworks and hosting backyard barbeques are traditional ways Americans honor our nation's holidays. For some, there are parallels in going through a divorce. The end of a marriage is undoubtedly a trying time, but it can also be a form of independence and freedom. While there may be fireworks between the soon-to-be ex-spouses, there is also an opportunity to start anew. I do not mean to belittle the seriousness and difficulty of divorce. However, it is essential always to maintain sight of the fact that the opportunity for a new beginning comes with the end of a marriage. And with that little pearl of wisdom, let us move on to some of your questions.?

ASK STACY: My husband is a successful author. In our impending divorce, how does the division of intellectual property work? If a studio turns one of his books into a movie after the divorce, am I entitled to a share of his proceeds?

MY THOUGHTS: Like most things in life, divorce, for that matter, the answer to this question is a bit complicated. First off, in California, intellectual property is considered a marital asset. That means anything your husband created during your marriage is an asset you are entitled to share. So, if your husband wrote a book while you were married, the royalties or residuals from that book should be a shared asset in perpetuity. If that book is eventually turned into a movie or television show, your divorce Judgment should show how future renditions of that intellectual property are considered.

If your spouse is hired to write a script for the movie based on his book, with the script being written following the divorce, he will be entitled to a higher percentage of the money from that movie for the additional efforts he puts in that occurred after the date of separation. Another consideration is whether he gets proceeds on the back end of the deal, meaning that he shares in the profit from the box-office sales. In such a case, you may be entitled to a share of his proceeds, but your Judgment should identify what is community property and what is his separate property. How intellectual property will be divided should be detailed in your divorce settlement. Otherwise, it will be left for a judge to decide the specifics. However, because we cannot predict the future, it may be wisest to have the court reserve jurisdiction to determine what part of any future use of an intellectual property community asset will be community and what will be the creating spouse’s post-separation efforts, therefore his/her separate property.

ASK STACY: What exactly is conscious uncoupling, and do you advise people to do it?

MY THOUGHTS: The most common way to think of “conscious uncoupling” is an amicable divorce. The term was coined by psychotherapist and author Katherine Woodward Thomas in 2009. In her book on the subject, Thomas proposed a five-step program as a calmer alternative to divorce. Celebrities have embraced this process during their divorce, keeping conscious uncoupling in the public eye. The idea behind this is not especially new, but as we all know, if a celebrity embraces something, it takes on the patina of being innovative. Regardless of what you call it, I am a proponent of couples working together cooperatively to benefit their family. I always encourage my clients to find amicable ways to dissolve the marriage, and I hope the other side also embraces this mindset. However, sadly, it often does not work out that way. My personal and professional opinion is that an amicable divorce takes emotional maturity and a deep respect for the process and each other. Divorce is never easy, but going through this challenging process more amicably is healthier for everyone involved, especially when children are in the picture.

ASK STACY: Are there any legal strategies that can be employed to help maintain privacy during divorce? I come from a high-profile family, and bringing unwelcome focus to our family will not be well received.

MY THOUGHTS: No one enjoys having their dirty laundry aired out in public, but filing for divorce in the courts does create a public record. To minimize the amount of information about the divorce that is publicly available, you first have to keep the proceedings out of the court system. That means avoiding litigation. You can keep most of the details of the divorce from the public record by proceeding through mediation or collaborative divorce. However, I would like to point out that even if you use a retired judge to adjudicate your dispute, your attorneys are still obligated to file pleadings in the public courthouse, which makes them public records. That makes it very difficult to keep the divorce completely private. But there are ways of filing a judgment that only reveals some things. I think it would be a good idea to talk to your lawyer about how to get that done. Many high-profile clients fiercely want to protect their privacy, so I understand your and your family's concerns.

ASK STACY: Stacy, what are some custody battle implications when one parent lives in a country outside of the U.S.?

MY THOUGHTS: Having parents who wish to live in different states is complicated enough regarding custody arrangements, but as you can guess, adding an international component makes things exponentially more difficult. We have all heard the stories of children being taken to a foreign country by one parent, only never to return. There is a well-known published case in California that deals with this scenario. In that case, the parent living outside the United States had to post a bond. If the child were not returned, then the bond would be forfeited. This sort of financial incentive can work, but in the case of a wealthy parent, the penalty may not prevent them from keeping the child despite the court’s orders.

I suggest that parents facing an international custody situation ensure that the Judgment is clear regarding the timeframes and responsibilities. Kids going back and forth to other countries should be the same as going back and forth to different cities or states or around the corner. However, certain countries are not party to the Hague Convention on the Civil Aspects of International Child Abduction. The U.S. State Department issues a periodic report on non-compliant countries. These countries include Algeria, Argentina, The Bahamas, Brazil, the Dominican Republic, Ecuador, Egypt, Japan, Morocco, Peru, Qatar, and Saudi Arabia – to name a few. Because they do not respect the Hague rules, or ours for that matter, you will not find the courts in those countries particularly helpful. In short, if your children end up in one of these countries, that may be the last you see of them, as heartbreaking as that might be.

ASK STACY: Can a child's wishes influence the court’s decision on custody? And is there a specific age when the child can choose which parent they want to live with?

MY THOUGHTS: The well-being of the children is always the court’s highest priority. Determining what is best for them often involves their expressed and implied wishes. By California statute, once a child reaches the age of 14, their wishes should be considered. And the more rational the child's wishes are, the more the court will consider them. However, even before age 14, custody evaluators will talk to the children to check out their thoughts and feelings on where they want to live. This evaluation is often done in ways that do not come right out and bluntly ask where they want to live, but in subtler ways that reveal the child’s true feelings. These evaluators will make recommendations as to what they feel is best for the child, taking into account the child's wishes. Judges will often hold hearings where children testify. Children can testify in court even before the age of 14. Let me give you an example of what the court or an evaluator would consider a rational reason to pick one parent over the other instead of an irrational one.

Let’s say a ten-year-old child shares the following story. “When I'm at my dad's house, we have dinner together as a family, but I always have to do my homework before dinner. He doesn't do the homework for me but helps me with it. He makes me feel safe. He comes to my baseball games, and he drives me to school. And when I have a problem, I can talk to him about it. When I'm with my mom, sometimes she forgets to cook dinner. Usually, there’s no food in the refrigerator, and sometimes she oversleeps and forgets to take me to school in the morning.”

The example may be an exaggeration, but it makes the point. If the reasons for being with dad or mom, or vice versa, are compelling and rational, then the court will pay attention. If the child says, I want to live with my dad because I do not have to eat healthy food, I do not have to do my homework, plus I get to eat popcorn and stay up and watch movies with him, that will not fly. The kid might love that living arrangement, but the court will not agree because it is not in the child's best interests.

ASK STACY: Stacy, what role do mental health and substance abuse issues play in custody decisions? I'm a recovering addict, and I have been sober for five years. Will the court automatically favor my spouse because of my past?

MY THOUGHTS: Domestic violence and addiction are focal points for the court. The court wants to make sure that a child or children are safe. The court will put up guardrails to protect the children's well-being. Depending on how long you have been sober and what program you are following, you can demonstrate to the court that this is not an issue and has not been an issue for your spouse for many years. That should be sufficient. But even if you’ve been clean and sober for many years, your spouse, who may be looking to get the upper hand, may make an issue of it.

Just because you have an addiction in your past does not mean you cannot be trusted to care for your kids. If you have been clean and sober and are responsible for taking care of your children, the court should not hold it against you. However, if you have had relapses and there are concerns, if you are not working a program, then the court will look very carefully at the kid’s safety and your ability to ensure it.

Regarding domestic violence in the Family Law context, if there is a finding that you have committed such an act, the court will not take this lightly. However, just because you have an addiction does not mean you have committed domestic violence. By the way, in the Family Law context, domestic violence is not just physical violence – it can be anything that interferes with one's emotional calm, a legal notion with broad parameters to help protect the victims.

Now, in the case of domestic violence, the timeframe matters. In a family law domestic violence trial, the time frame is supposed to be within the prior five years. If the court determines that there was domestic violence, there is a presumption that the perpetrator will not share (or have sole) legal or physical custody. Mind you, this is an overcomeable presumption, which means it is not an ultimate finding; the presumption may be rebutted.

ASK STACY: I've always been a free-spirited person who doesn't believe in setting too many boundaries or limiting expression. We learn from our mistakes, and I've always encouraged my kids to follow their path. Even though our children have never gotten into trouble or made terrible mistakes, my ex is using my life philosophy against me in our custody battle. Does the court evaluate different parenting models such as these in determining custody?

MY THOUGHTS: The court generally does not judge lifestyle so long as it is lawful and does not endanger the children. The court is primarily concerned with whether the kids are safe and succeeding in school, extracurricular activities, friendships, et cetera. If the court feels your children are safe, even if you may come at it from a different angle, you will not be judged unfairly. But suppose you let your kids make their own rules, for instance, deciding when they want to go to school or even something as simple as not bathing regularly to the point that their teachers and the principal complain. In that case, the courts can have a very different view of your parenting. If there is reason to be concerned about the welfare of your children, the court will factor that into its custody decisions.

ASK STACY: My ex and I are in a very contentious divorce. To gain the upper hand, she has leveled false allegations of domestic abuse. Can I trust that the court will see through these shameless fabrications?

MY THOUGHTS: It is up to you to put your best case forward and have witnesses confirm that the abuse never happened. Arm your lawyer with the information they need to properly cross-examine your spouse to demonstrate there is no foundation for what he or she said. It is important to remember that sometimes judges get it right and sometimes get it wrong. A lot is riding on getting out the truth here. If the court determines your wife has made up these accusations, she can lose the kids to you. It is a challenging game to play with some very high stakes and consequences.

The quality of your lawyer matters, especially in cases like this. Ideally, a skilled lawyer will pick apart the lies and reveal the truth.

ASK STACY: A friend of mine has remarried the same person five times over the last 25 years, which means they've had four divorces. Have you ever encountered anything similar to this? And if not, what's the strangest case you can recall?

MY THOUGHTS: I know movie star Elizabeth Taylor famously married and remarried Richard Burton three times. But no one is shocked when it comes to celebrity couples. I have had a client marry the same person a couple of times. It makes you wonder what is going on in this relationship. They cannot be together but, at the same time, cannot be apart. If I were to offer this couple any advice, I would say – move on with your life. You are spending too much money on divorces.

ASK STACY: My husband is mentally unstable. I don't believe he is violent, but I am afraid for me and my family. I need out. How can I proceed safely?

MY THOUGHTS: Well, let's first determine if his mental instability could lead to violence to himself or somebody else. If that's the case, then you should consider working with a mental health professional and have him committed to a 72-hour hold. I would also be very vigilant about the potential for domestic violence. Is there a history with him, or was he exposed to it during his upbringing? If that is the case, the risk that violence could occur is high. You should consider seeking help. One option is to text “BEGIN” to the number 88788 – a national domestic violence hotline that accepts texts. You can also call the police if you feel in any danger. I would also recommend contacting a lawyer to discuss your options and rights regarding protecting yourself and your children.

ASK STACY: How does the court determine the child's best interest in a custody case?

MY THOUGHTS: That is an excellent question because if the parents cannot agree, it is up to the court to make that determination. The court will decide based on the written or oral testimony of various witnesses taken during a hearing, along with demonstrative evidence. Beware that parents’ texts and emails between themselves and even with the child(ren) are often a focus of a custody hearing (and a domestic violence hearing). If a child or children are over 14 years old, their wishes will be considered. And if their wishes are rational, the court may weigh that heavily in its decision. As for me, I am passionate about advocating for my clients, but I recognize that as eager as I may be, the court, in her or his mind, may have a different interpretation after listening to the testimonies of various people.

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.