HBO’s Divorce: Episode 7 – From Fred’s Perspective
By Fred Kobb
One of the more frequent questions I get from divorce clients is whether they can date after separating. My usual answer is: Yes, but be discrete about it.
Robert finds himself in this situation throughout much of Episode 7, when we see him making advances first to an old flame, then to a friendly barista, and finally to a seductive class parent. While the first two women spurn his advances, the third is eager to sleep with Robert. In the real world, this sort of behavior could cause problems for Robert in the divorce because even after separating, one can be accused of adultery. Adultery is defined as having sexual relations with someone other than one’s spouse, and a separated but not yet divorced man or woman still has a spouse. In other words, until a divorce is final—meaning when a judge signs a divorce decree, which in Maryland is called a Judgment of Absolute Divorce—a husband and wife are still legally married. This scenario creates a potential problem because adultery can be used by one spouse to prove fault, which may be considered by a court when deciding issues of marital property and alimony.
Nevertheless, most lawyers and judges distinguish between “pre-separation adultery” and “post-separation adultery.” The former is usually advanced by the innocent spouse as the basis for a breakdown of the marriage, which can, in turn, affect how the financial issues are resolved. On the other hand, the latter is generally considered inconsequential. While post-separation adultery may inflame emotions in a contentious divorce, it rarely, if ever, has any impact on the financial outcome.
Another question that often comes up during a divorce is whether one spouse is responsible for the debts of the other spouse. In a word, the answer is: No. In a rather theatrical scene, Frances confronts Robert about his having buried the couple in debt by “remortgaging” their home, presumably in an effort to salvage Robert’s business, which, Frances is told by her lawyer, is worthless—meaning it has no marketable value. Frances is also told by her lawyer that since she is the primary wage-earner, she is responsible for Robert’s debt. Frances is understandably upset and accuses Robert of having gambled away their children’s futures. While this all makes for entertaining television, this exact scenario would likely not be true in real life. For instance, where a home is owned jointly by a couple, one spouse is not be able to take out a new or second mortgage on the home without the other spouse’s knowledge, cooperation and consent. That’s because a bank cannot put a lien (a mortgage being a type of lien) on a piece of property without the approval of all owners of the property. Therefore, Robert could not have “remortgaged” the home on his own. In addition, in Maryland at least, one spouse is not responsible for the debts of the other spouse. For instance, where one spouse has overdue credit card debt, the credit card company cannot collect from the other spouse. That is not true of a joint debt, in which case a creditor (lender) can usually collect a delinquent debt from either joint debtor. While Frances will have to accept that Robert has run his business into the ground, in real life, she wouldn’t have to worry about paying off Robert’s business debt. This, perhaps, is a small consolation where Frances was expecting a nice payout for her interest in Robert’s business.
Episode 07: Weekend Plans
Original Air Date: November 20, 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 >>