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HBO’s Divorce Ep. 1, Pilot; Commentary by FK

HBO Divorce Series: Issues and Commentary

By Frederick Kobb, Esquire

Divorce: The final frontier between marital bliss and a post-marital life. This is the voyage of the family DuFresne. Its first-season mission: To explore the tumultuous world of break-up, separation and the divorce process, the path to a new life and single parenting, to boldly go where neither spouse has gone before.

Do you recognize the resemblance of this introduction to the voiceover introduction to the Star Trek television program from the 1960’s? If not, hopefully, you do now. The similarities between Divorce and Star Trek may be tenuous, but both shows undeniably explore the voyage of a cast of characters into an unknown land: Space in one instance, Divorce in the other.

My colleague, Mollie Caplis, and I thought it would be fun to comment on the content of each episode of Divorce from the viewpoint of a family law attorney in order to offer our professional perspective on the show. Hopefully, this will provide some real-life insights into the show’s story line and will enhance your enjoyment of the show.

So, let’s get started with episode one.

We learn that Robert and Frances are married with two children. Frances is experiencing self-doubts about the marriage, especially as she compares the state of her marriage with the tumult of her friend’s marriage (complete with the wife’s “accidental” shooting of the husband). When Frances shares her disappointment and unhappiness with Robert, Robert is clueless and incredulous. His lack of understanding is highlighted by offering Frances a round of sex as a means to solve the problem.

We then learn that Frances is so disenchanted with the marriage that she has been having an affair—in the language of family law attorneys, committing adultery. Upon learning of Frances’ infidelity, Robert locks Frances out of the house—again, in legal parlance, the marital home. While talking by cell phone as each one is on either side of the locked front door, Robert tells Frances that he will make her life miserable and turn the kids against her—parent alienation is the term of art. Robert also informs Frances that he will now pursue a divorce and exploit her affair—meaning he will allege adultery as the fault-based grounds for divorce—rather than doing it the “easy way,” alluding to the non-fault based divorce grounds of a voluntary separation.

There are a few real life teaching points that this episode provides.

First, adultery can be a serious matter in a divorce. Under Maryland law, “the circumstances that contributed to the estrangement of the parties” (this language comes right out of the marital property and alimony statutes) is a factor in deciding issues of a property settlement (“monetary award” is the term used in the statute) and alimony. Robert is right to think that he will gain leverage in settlement negotiations or at trial before a judge if he can prove that Frances committed adultery—which shouldn’t be too hard, since he knows the identity of Frances’ paramour. At the same time, Frances will likely attempt to justify the affair by claiming that Robert was so distant and self-centered that there was no romance or empathy in the marriage, thus forcing her to seek those things elsewhere. Whether any benefit derives from proceeding with a divorce on the grounds of adultery is fact-specific and not guaranteed by any means.

Second, the notion that one spouse may lock the other out of the marital home is questionable in the real world. Certainly, where the home is titled in the names of both spouses, which is usually the case, it is legally impossible (with limited exceptions, like acts of domestic violence) to keep a titled owner from entering the home by force if they choose (by breaking down the door or calling a locksmith). Even if the marital home is titled to only one of the spouses, judges are reluctant to order the spouse without an ownership interest in the property to vacate the property. The effort to keep a spouse away via a lock out will likely fail and, worse, the additional animosity created by the effort may be counter-productive. It’s usually better to work on a plan for a separation, which, by the way, would not necessarily deprive Robert in our story from pursuing a divorce on the grounds of adultery.

Finally, Robert’s threat to put the children in the middle of the divorce is by anyone’s standards (but most importantly by the standards of virtually every judge) wrong, not to mention vindictive and selfish. Under no circumstances would this be acceptable or justified. We’ll see whether Robert follows through on this threat. Hopefully, he speaks to a seasoned, competent family law attorney—someone like Mollie or myself—who will strongly advise against it.

Review commentary By Mollie G. Caplis.

Episode 01: Pilot
Original Air Date: October 9, 2016

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– 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 >>