HBO Divorce Series: Issues and Commentary—Episode 6
By Fred Kobb
Celebrating the holidays in the midst of getting divorced is difficult, as is evident by Robert and Frances’ Christmas story that plays out in Episode 6. Being together as a family is a central part of the holiday experience. But, when a family is going through a separation and divorce, the joy and the love that define the holidays for most families is muted, if not silenced altogether. Thus, it is not surprising that when the DuFresne family tries to pretend that they are still intact and happy during a holiday visit to Frances’ parents, the scene that is created is at times both sad and humorous.
While most of the action in Episode 6 is not particularly noteworthy from a lawyer’s point of view, it does include a couple of themes that are worthy of viewing through a legal lens. Toward the beginning of the episode, Robert and Frances argue about how to share access with their children for the holidays. Holiday access is a particularly difficult matter for parents to address because family traditions have typically developed around the holidays and those traditions have come to define the family’s holiday season. Usually, those traditions can no longer be fully honored by families of separation and divorce. They are compelled to compromise and, perhaps, create new traditions. The solution Robert and Frances devised is tenuous at best. Spending the holiday together and pretending like nothing is wrong is unworkable and, as we see during Frances public revelation of the couple’s split, can make everyone else in the room uncomfortable. During the holiday season, family law attorneys expect to get calls from clients that are facing the need to share holiday access with their children for the first time. In fact, some courts have established a special procedure in late December for parents to present disputes about holiday access to a judge who will quickly establish a temporary holiday schedule.
The scene in which we see Robert and Frances sleeping together in Frances’ childhood bed presents an interesting fact pattern that is worthy of a bar exam question. It is obvious to any family law attorney that the choice to spend the night together, even without sexual contact, could cause a huge problem for Robert and Frances in getting divorced, which is the one thing about which they appear to agree. In order to get divorced in Maryland, one party to the divorce must be able to establish facts that satisfy the elements required for one of several recognized grounds for divorce. If Robert and Frances were getting divorced in Maryland, two such grounds that would be at play are a one-year separation and adultery. In order to get divorced on the grounds of a one-year separation, the separation must be continuous, meaning no interruptions or lapses. A separation is defined as not spending the night together under the same roof, whether or not in the same bed and regardless of whether sex was involved. Another element of a separation is the absence of sexual intimacy (which could be something less than sexual intercourse). While it seems clear that Robert and Frances did not have sex and were not otherwise intimate with one another while sleeping together, if they had been sexually intimate, the separation period would have ended. At the same time, by virtue of their having spent the night under the same roof—that being the home of Frances’ parents—Robert and Frances unwittingly interrupted their separation. That impropriety is not fatal, as the separation period would begin anew once they resumed living (and sleeping) in separate homes. However, if a one-year separation was the sole ground for divorce and the separation had been interrupted well after Robert and Frances had initially separated, that could have significantly delayed their ability to get divorced.
In all candor, when I saw Frances and Robert sleeping together, I predicted that they were going to have sex. By all appearances, I predicted incorrectly. However, if my prediction had been correct, that would have presented a whole other issue in the divorce situation. Frances’ adultery will undoubtedly continue to be the subject of Robert’s ire. Aside from being a ground for divorce, a spouse’s adultery may also affect issues of alimony and a property settlement. That’s because one of the factors a court may consider in addressing both of those issues is the circumstances that contributed to the break-up of the marriage—in other words, fault. In most instances, an unfaithful spouse is a faulty spouse. While there is a fair debate among lawyers and judges about the weight adultery plays in resolving adultery and property issues, the risk factor is undeniable. If Robert and Frances were getting divorced in Maryland, the ability of Robert to rely on Frances’ adultery as a ground for divorce, and possibly as a factor in a resolution of the financial issues in the divorce, would have been compromised if Robert and Frances had in fact been intimate over the holidays. That is because Maryland law allows the unfaithful spouse to defend against a claim of adultery on the basis that the aggrieved spouse has forgiven the infidelity. One way forgiveness can be proved is the couple’s renewing a sexual relationship after the aggrieved spouse learned of the infidelity.
Whether or not Robert and Frances were aware of the legal consequence of having sex at that point, they probably had other reasons for not being intimate while sleeping together—perhaps to preserve the silent night.
Episode 06: Christmas
Original Air Date: November 13, 2016
– Fred Kobb is a litigator at heart. He first joined Wright, Constable & Skeen over 25 years ago to defend the firm’s railroad clients in serious personal injury cases. His practice quickly expanded into the family law area, where he applied his negotiation and litigation skills to zealously advocate on behalf of individuals whose families were undergoing a life-changing event. Read more >>