Three Ways Technology Can Haunt Your Divorce

This is an article provided by the firm of Gillespie, Shields, Durrant & Goldfarb in Phoenix. I’m proud to share it with you.

One woman confessed to murder on Facebook. Another fled to Mexico where she tweeted  “catch me if you can” along with her geolocation. A Hawaii resident uploaded a video of himself  drinking and driving. Of course, these “social media confessions” are blatantly obvious ways to  help out criminal prosecutors; but can social media also damage proceedings in family courts?  Yes. And at an increasingly rapid rate.

Phoenix divorce attorney DeeAn Gillespie of Gillespie, Shields Durrant & Goldfarb says social media and online or electronic  communications are in almost every divorce case and many custody and support hearings.  Why? A couple of decades ago, there was little people could do to  prove someone cheated, had anger management problems, etc. Family courtrooms were made  of “he said, she said” arguments. That is until everyone had a phone, email and Facebook. Now there’s proof — either a positive or negative.

Gillespie’s new rule of thumb for clients: stay off social media and watch not just what you say but also what you write. Dating apps, social media posts and texts can be especially  damaging, she said, citing some cases to backup her claims.

Dating Apps

“Life is Short. Have an Affair.” – Ashley Madison (pre-hack).

Not exactly something a user would want advertised in their divorce hearing, especially in the 33 fault states where “adultery” is a checkable box on legal papers. But after Ashley Madison’s  highly publicized hack and subsequent leak of users last year, scorned women are using their now soon-to-be ex-husband’s profiles as evidence of cheating and sometimes more importantly, as a powerful negotiation tool. And while the openly pro-cheating site gained national headlines, it  wasn’t the first time dating sites danced their way into divorce court rooms.

Since 2013, more than half of divorce attorneys with American Academy of Matrimonial Lawyers (AAML) said they saw an influx of clients using dating websites as evidence. Sixty-four percent of participating attorneys said Match.com was the most common, followed by eHarmony. As for the information most commonly used against spouses, 57 percent of divorce attorneys said relationship status, followed by salary or job descriptions at 15 percent and parental status at 7 percent.

So if you can’t wait for a legally finalized divorce to sign up for dating sites, it’s in your best interest to avoid exaggerations like these real-life examples:

  • In a custody case, a husband was seeking primary custody of his children; his Match.com profile said he was single and childless
  • In a divorce case, a husband said he didn’t cheat; his wife used his Tinder account as opposing evidence

Mobile dating apps like Tinder and Bumble and social apps like SnapChat are, as noted in the last example, also making their debuts in divorce court. While not proving an affair, having a Tinder account could serve as circumstantial evidence a spouse is flirting with the idea. SnapChat, where users send pics to friends that “disappear” after opening, also stores some data. The company recently admitted to complying with 92 percent of U.S. government subpoenas in its first ever transparency report; although what the subpoenas were for was not discussed. So far, SnapChat data has served as evidence in a high-profile murder and child pornography investigation, but no publicized divorce cases. Time will tell if these apps become as damning (or beneficial) as their online counterparts.

Couples divorcing should always keep close tabs on their phones and all its stored or saved content.

Text Messages or Emails

One of the first warnings clients hear from divorce attorneys is to be careful about what they text, email or in any other way write out to their soon-to-be ex. Texts are not too different than emails; they can be saved, printed and used in courtrooms as evidence. In fact, texts are the most common form of technological evidence in divorce cases and attorneys regularly serve subpoenas for emails. Assume every email or text with your spouse or children could appear in court, legally.

This, of course, goes both ways. If you catch your spouse lying, bring it to your attorney’s attention. It could be the game-changer in your case, proven by these examples:

  • In a divorce case, a woman denied having an affair; a computer forensic expert recovered deleted emails and proved she was lying
  • In a custody case, a father denied the mother’s allegations that he was continually disparaging; the mother showed year’s worth of texts where the father belittled her and used foul language and the courts granted her custody.

And it’s not just about thinking before your speak, or type; couples should also be wary of where they leave their phones. If a spouse leaves their phone unlocked in a public place, like their shared kitchen, the other spouse can legally look through the phone and copy the content.

Facebook

The most popular social media site, especially for Generation X, has almost two billion monthly active users. Growing just as rapidly is Facebook’s appearance in family court proceedings; in a 2010 survey by AAML, 66 percent of divorce attorney respondents cited Facebook as the primary source of online evidence used against their spouse. By the end of that same year, the social media powerhouse had 608 million active users.

But how is Facebook relevant to divorce proceedings? Below are some real-life examples:

  • In a custody case, a mother denied gang affiliations; her Facebook account had multiple pictures of her showing off gang tattoos and hanging out with known gang members
  • In a divorce, a husband argues he had a low income and did not cheat on his wife before they separated; the husband’s alleged girlfriend’s Facebook showed a chronological timeline of their affair as well as photos from expensive vacations taken together
  • In a support case, a husband claimed he was unemployed and needed to transition his temporary spousal support to permanent; his Facebook said he was a “business owner” and talked about trips with his girlfriend to Las Vegas, South America and SeaWorld
  • In a custody case, a mother denied she smoked marijuana; she posted photos to Facebook of her smoking.

Facebook can even become a critical player before the divorce proceedings are in motion. In another case, a hired investigator needed to locate a defendant to serve divorce papers. The investigator created a fake Facebook account of an attractive woman, “friended” the defendant, struck up an online conversation and arranged a meetup. When the defendant showed up for the rendezvous, he found not the foxy lady he expected but a process server.

It’s obvious how to avoid Facebook evidence popping up against you in court; don’t post anything incriminating or friend people you don’t know. The real trick, however, is ensuring evidence in your favor is legally obtained.

As evident by the investigator tracking down the defendant, anyone you’ve “friended” has full access to your profile and there is no longer a reasonable right to privacy. If someone hacks into another person’s Facebook account, however, they are violating state and federal laws.

At the end of a divorce, technology may be your friend, enemy or even a frenemy. To ensure it doesn’t end up haunting your divorce, follow these eight social media “rules” to keep your family law matter noncriminal and free of damaging surprises.

8 Social Media Rules While Going Through a Divorce

  1. Review and update privacy/security settings for all social media accounts and computer
  2. Change all passwords to something your spouse can’t guess
  3. Ignore or block friend requests from people you don’t know
  4. Tell your close friends and family to also ignore unusual friend requests
  5. Stop tweeting- especially about anything related to your family or the divorce process
  6. Don’t send Snapchat photos or post photos/videos to your story
  7. Ensure your LinkedIN matches what you tell the judge
  8. Conduct a Google search on yourself to find any forgotten results or images.

Wisconsin Allows Lawyer/Mediators to Draft and File Divorce Settlement Agreements

We learned today on the excellent Family Law Prof Blog that the Wisconsin Supreme Court will permit lawyer/mediators to draft and file settlement documents in family law cases. Here’s a summary of the change in the Wisconsin Bar newsletter.

In the past, couples who used a mediator had to hire separate counsel to prepare the documents for filing. More often, court officials say, those couples simply prepare the filing documents on their own. The change is expected to become effective July 1, although the court has not issued a final order, so the effective date could change.

In Wisconsin now, an estimated 70% of those filing for divorce do so without the assistance of any lawyer. So the change may reflect the gritty reality of current divorce law practice.

The ethical rules binding lawyers have been seen in the past as preventing lawyer/mediators from drafting any documents resulting from the litigation other than a memorandum of understanding. The change would allow lawyer/mediators to help divorcing couples to reach agreement on the issues of their divorce, acting as a neutral. After agreement is reached, the lawyer/mediator would then be authorized, with the informed consent of both parties, to prepare and file a settlement agreement and the other documents needed to complete the divorce.

Informed consent requires that the lawyer/mediator explain several things to each party:

  • The limits of the lawyer’s role;
  • That the lawyer does not represent either party to the mediation;
  • That the lawyer cannot give legal advice or advocate on behalf of either party to the mediation; and
  • The desirability of seeking independent legal advice before executing any documents prepared by the lawyer-mediator.

It also requires that the lawyer/mediator disclose any interest or relationship that might compromise the lawyer/mediator’s neutrality.

The drafting of divorce documents would not create an attorney-client relationship between the lawyer/mediator and either party. The rule clarifies that the lawyer/mediator would not be authorized to appear in court on behalf of either party.

In memoranda submitted to the court in support of the change, Wisconsin family lawyers were generally supportive of the change, noting that the existing policy penalized those who tried to follow the rules. The change would enable lawyer/mediators to remain neutral and provide a full solution for their mediation clients while remaining within the bounds of ethical practice.

 

 

Alaska Orders Divorce Judges To Consider Pets’ Welfare

It was just a few days ago that I posted about the status of pets in divorce. I said that family law has a rigid view of pets as property and that people in divorce just need to get accustomed to that. Now comes word that Alaska is making a liar of me.

As of a week or so ago, Alaska is now the first state to require courts to “take into consideration the well being of the animal.” It also gives judges discretion to order joint custody of pets. Here’s the article about it in the Washington Post.

My dog is curled up at my feet as I write this, and both my wife and I enjoy hanging out with him. So I get the deep emotional connection both spouses in a marriage often have with their pets. My concern is that every issue in divorce takes time for the judge and court staff to address. Time to read the pleadings, time to hear the testimony and argument, time to make a decision, and time to write the order. If we want the judge to spend more time addressing the needs and well-being of Horace the golden retriever, and if we don’t accompany our demand with the willingness to support higher taxes to hire more lawyers and staff, we are by definition saying we want judges and staff to take time away from the other issues of divorce, like retirement plans, alimony, and the well-being of children.

Judges almost unanimously say their decisions would be better and their lives more pleasant if they didn’t need to deal with such a crushing workload every working day. The Alaska statute, perhaps without intending to, will make this problem worse.

 

Due Process and Proving Income in Divorce

Lee’s note – 5/5/17: This note was originally based on a version of the court’s opinion that has since been withdrawn. On April 7, 2017, after rehearing, the appeals court withdrew that opinion and substituted a now one in its place. I have left the note in place, but I have added at the end a quick summary of the new language from the new opinion.

Wesley Person earned $40 million playing basketball in the NBA. Unfortunately, his success on the court didn’t transfer successfully to his life off the court. He ended up unemployed and with his marriage in divorce court. Because he and his wife could not or did not agree quietly on the terms of their divorce, we now know more than we need to about his financial affairs, cataloged and discussed in the case of Person v Person, DR 2150225 (Ala. Civ. App. January 20, 2017).

For students of domestic relations law, the case provides an excellent demonstration of the mundane requirements of complying with procedural due process and proving income in divorce. The trial court had entered a pendente lite order in the form of a temporary restraining order (often shortened by lawyers to the term “TRO”) after the wife had filed for divorce but before the complaint had been served on the husband. The TRO set child support at $6,000 per month and alimony at $10,000 per month. There’s no mention in the opinion of efforts to convert the TRO later to a permanent order. The husband made no payments at all in compliance with it.

By the time the case was tried, the arrearage on the child support and alimony stood at $320,000. The trial court set the arrearage but did not describe any plan to pay it. The trial court divided the couple’s property and ordered the husband to pay alimony of $1,000 per month and child support of $2,500 per month.

The husband argued on appeal that that original pendente lite order was void because it didn’t comply with Ala. Rule Civ. Proc. 65(b). Specifically, Rule 65(b) requires that to support an order without notice to the other party requires proof in affidavit or verified complaint that immediate and irreparable harm will result to the applicant before the adverse party or his attorney can be heard in opposition. It also requires that the applicant’s attorney certify to the court the efforts made to give notice to the adverse party and the reasons supporting the claim that notice should not be required.

Because the record contained neither of these essentials, the appeals court agreed with the husband that the order was void. It therefore reversed the trial court’s order setting the arrearage. The appeals court reversed the trial court’s order of child support because “there is no evidence of the parties’ incomes or of the needs of the children in the record.” The appeals court pointed out that, on remand, the trial court could choose to make the order of child support retroactive to the filing of the wife’s complaint for divorce.

The appeals court reversed the trial court’s alimony order because there was no evidence in the record demonstrating the wife would be unable to meet her needs absent alimony. And finally, because alimony and property division are interrelated, the appeals court reversed the trial court’s order on property division.

So now this case goes back to the trial court, where an angry but wiser judge will take evidence on the incomes of each party,  the need of the wife for alimony, and the needs of the children. Then the trial court will issue a new order spelling out its findings and issuing orders for child support, alimony, and property division.

Summary of changes in April 7 opinion: The court does not appear to have made any significant substantive changes in its ruling. There is no longer an invitation to the trial court to make the award of child support or alimony retroactive to the filing date, but neither is there any specific bar to a retroactive order. The appeals court does include language in its revised opinion pointing out that at the hearing on the husband’s postjudgment motion, the wife seemed to believe the portion of the marital estate awarded to her would be adequate to provide for her support (implying that alimony may not be needed).

Gouging People in Divorce

When you think of people getting victimized in the middle of divorce who comes to mind? Lawyers, right?

There certainly are plenty of lawyers whom I’ve watched stir up enmity between two spouses who started out cooperative, causing both of them to spend thousands of dollars in legal fees they can’t afford to pay, until they end up with a settlement that’s strikingly similar to the one they were talking about together before the lawyers got involved.

But this is not about those lawyers; it’s about the employers and money management firms that have discovered they can get one last pound of flesh out of couples who need to divide a retirement plan. I charge $300 to prepare the QDRO for the division of most defined contribution retirement plans. That’s less than most lawyers, but few lawyers charge more than $1,000 or so, at least where I practice. Recently when I told a divorcing couple about that charge, I had to add “but check with your employer; lately they’ve been adding a fee on their end.” Sure enough, their employer had added a $450 “processing fee” that somebody needed to pay, just to allow the wife to share their marital property.

Yes, the employer needed to do a little work to check my QDRO draft and make sure I had done it right, but that work was performed by salaried employees, and they performed their work at zero marginal cost to that employer. It’s not about recovering cost; it’s about finding a new way to kick their own employees in the groin.

I could almost understand if this were a big money management firm like Fidelity or Vanguard adding a charge like this. Their primarily relationship is with the employer, not the employee, and they really have no reason to care if my client lives, dies, or goes bankrupt. But this was my client’s employer, who professed to care deeply about their worker who was going through one of the most miserable times of his life. Why couldn’t they cut the poor slob a break?

Because this page discusses my practice, I need to say this: no representation is made that the quality of the legal services to be performed is greater than the quality of legal services performed by other lawyers.

Changing Child Custody After Divorce

Courts allow one of the parties to a divorce to ask after a divorce for a change in the living arrangements for a child of the divorce, but most states require a significant change in circumstances to avoid disrupting the child’s life unnecessarily. In Alabama, that requirement is embodied in the case of Ex parte McLendon, 455 So.2d 863 (Ala. 1984). The now-famous “McLendon standard” states that a parent seeking to change sole physical custody previously granted to the other parent must prove that (1) he or she is a fit custodian; (2) material changes affecting the child’s welfare have occurred; and (3) (the toughest test) the positive good brought about by the change in custody will more than offset the disruptive effect of uprooting the child.

In the recent case of Gordon v Gordon, DR 2150775 (Ala. Civ. App. January 20, 2017), we see a textbook application of the McLendon standard. Mom and Dad had divorced while Mom was a medical resident. Their mediated agreement called for joint legal custody and sole physical custody for the father. Three years later Dad filed for an increase in child support and some unspecified changes to child custody, and Mom responded with her own claim for changing to joint physical custody. The trial court increased Mom’s child support and determined that she had failed to satisfy the McLendon standard.

The appeals court mentioned Mom’s argument that the McLendon standard “is based on a misconception, violates public policy, and is a barrier to custody awards that are in the best interest of the child.” Its only response was a footnote quoting its earlier opinions: “[T]he McLendon standard is not unconstitutional[, and] the McLendon standard has not been superseded by statute.” Gallant v. Gallant, 184 So.3d 387, 405 (Ala. Civ. App. 2014).

Mom had introduced the video deposition of her expert, Dr Linda Nielson, who said research in some 40 studies had consistently shown that children in “shared parenting” arrangements enjoyed better outcomes on issues like the quality of relationships with parents, behavior, mental health, and academic performance than children in other post-divorce arrangements, even in the presence of high conflict between the parents.

When asked specifically about the disruption of changing the child’s living arrangements from one parent to another,  Dr Nielson had stated: “It’s a change, but it does not have a negative outcome, otherwise, you would not find the positive outcomes that you did in the forty studies. All of the forty studies, those children changed from a –living with one parent to living with both parents. All forty studies, the children made a change, they switched.”

Mom argued that the expert’s videotape deposition constituted “undisputed factual and scientific evidence” demanding an award of joint physical custody. The appeals court rejected this argument, however. “When the evidence is presented to the trial court ore tenus, it is the trial court’s duty to determine the weight and credibility of the witnesses [impliedly including expert witnesses] and their testimony.” Smith v. Smith, 196 So.3d 1191, 1202 (Ala. Civ. App. 2015).

How Not to Revoke a Prenuptial Agreement

This case is painful to read. Margaret Ann Harrison and Jerry Harrison were married for more than 25 years. He was almost certainly unfaithful to her. She presented evidence that, following one episode of his infidelity, she and he had agreed to cancel the prenuptial agreement they had signed the morning before their wedding as a prerequisite for her continuing in the marriage. Yet at divorce, he was able to enforce the prenuptial agreement.

The case is Harrison v Harrison, DR 2150883 (Ala. Civ. App. January 20, 2017). The husband’s and wife’s testimony was contradictory, so it was left for the trial court to determine which party was telling the truth. The wife said the husband had signed a list of her requirements at home, including the voiding of the prenup, writing “I agree to this” on the list. The husband agreed that he had signed it, but only hurriedly because she had interrupted him at work and he needed to get back to his medical practice. The wife also produced a version of the prenup with a big “X” drawn across the first page and the words “Voided 5/22/10” on page one, together with her initials and what she said were the husband’s initials as well. He said he had no memory of signing the document.

After hearing testimony from the wife’s handwriting expert, the trial court found the prenup agreement to be valid and enforceable, producing a written opinion to support its decision that detailed its findings of fact. It took a couple of passes to get the case to the point where the appeals court regarded it as an appealable final order.

The appeals court quoted the trial court at length and relied heavily on the fact that this is an ore tenus case, one in which the trial court had heard direct testimony and had made a determination of the witnesses’ relative credibility. “‘When evidence is presented ore tenus in a divorce case, the judgment of the trial court premised on findings of fact that were based on that evidence is presumed correct and will not be set aside on appeal absent plain and palpable error.’ Garrett v. Garrett, 637 So.2d 1376, 1378 (Ala. Civ. App. 1994) (citing Bailey v. Bailey, 594 So.2d 166 (Ala. Civ. App. 1992)).”

So what should the husband and the wife have done if they wanted to revoke the prenup? They needed a more formal document, like the one I’ve included on this web site. Its essential elements include:

  • Formal naming of the parties
  • Identification of the prenuptial agreement together with the date on which it was originally executed
  • Recitation of consideration supporting the revocation
  • A clear and ambiguous statement that the parties intend to revoke and are hereby revoking the prenup
  • Signature and date of each party
  • Formal acknowledgement of each signature before a notary public

The trial court implied that the same requirements for the enforceability of the prenup governed its revocation. That would include an implied requirement that each party have an independent advocate at the time of the revocation. Barnhill v. Barnhill, 386 So.2d 749 (Ala. Civ. App, 1980). This seems unnecessary, inappropriate, and out of step with the majority of jurisdictions. Although the appeals court did not specifically reject the trial court’s reasoning, it did make clear that it was not making any decision that the trial court’s statement of those requirements was accurate. “We need not address whether the enforceability of a postnuptial rescission of a prenuptial agreement requires satisfaction of the Barnhill requirements, because the trial court found that the wife did not prove that the parties had mutually agreed to take any action regarding the agreement in 2010 and that finding is supported by the evidence.”

Imputing Income for Child Support

Because the Alabama child support guidelines in Rule 32 are straightforward and reasonably logical, litigation around the issue of child support in Alabama is relatively rare. However, one of the areas in which parents can disagree – and bring their disagreement to the judge to resolve – is the issue of imputed income.

Both parents submit their income on CS-41 forms, and the court determines the child support from the information on those forms using Form CS-42. But if one of the parents argues that the other is voluntarily unemployed or voluntarily underemployed, and if the court determines that they are correct, the court must (yes, I said must) impute income to that parent.

We see this issue played out in Randall v Sizemore, DR 2150905 (Ala. Civ. App. January 13, 2017). This is the second trip to the appeals court for these parties, so this surely must be getting tiresome for both of them. Dad had worked as the manager of a concrete company and had enjoyed an income of $73,000. Then the company folded, and he worked as a truck driver for other concrete companies, with income around $50,000. By the time this case rolled around, he was working as a retail salesperson for a liquor store in Mississippi and earning an income of only $22,000.

The first time the case was reversed and remanded, the appeals court had agreed with Dad that his income seemed to have dropped enough for there to be a material change in circumstances, which triggered his right to a recalculation of child support. On remand, the trial court had found that Dad was voluntarily underemployed and had “impute[d] income to the Father at the amount of his former employment.” The trial court apparently did not change child support at all or attach a Form CS-42.

After exploring the competing arguments surrounding the issue of voluntary underemployment, the appeals court reversed again with instructions to the trial court to “determine the specific amount of income to be imputed to the father, to determine the mother’s current income, and to calculate the father’s child-support obligation using Form CS-42.”

Maybe this will do it. Let’s hope so.

Should We Make Divorce More Difficult?

When you’ve been focusing on divorce as long as I have, you hear a lot – I mean a LOT – about how divorce has become too easy. “People don’t take marriage seriously any more; the first time they have an argument, somebody runs out and gets a divorce.”

The latest salvo comes from the son of a Baptist preacher turned Texas legislator who has introduced legislation to do away with no-fault divorce. He’s part of a decades-long pattern of religiously-minded men who want to impose their faith practices on public policy.

What we’re actually seeing undermines the easy assumption that divorce is too easy. What the statistics tell us is that today’s young adults, intimate as many of them are with the trauma of divorce, are so afraid of it they are reluctant to marry. The divorce rate is down, and so is the marriage rate. Today’s young adults are almost as likely as their counterparts from a generation ago to fall in love with someone of the opposite sex, and they’re almost as likely to share a household with them. What they’re less likely to do is marry them.

For years, most divorce attorneys, when challenged about how easy it is to divorce, have pointed out how easy it is to marry and have suggested that perhaps we should make marriage more difficult. Now that argument becomes less appealing. Most of us would say that when two people love each other, and particularly when they want to make a family together, it’s better for them to marry than to just shack up. We know that family law gives a measure of protection to a spouse who compromises his or her career for the sake of the family, and we know those protections seldom or never come into being in the absence of marriage. Given a new reluctance by loving couples to marry, do we still want to make it harder for them to marry?

What I can say from my little vantage point of watching people divorce over the decades is this: divorce is NOT too easy. Broken marriages are almost always accompanied by deep, searing pain, pain that spreads like an infection through both spouses to children, parents, siblings, neighbors, and co-workers. Sometimes that pain drives people to act violently. Measures to increase the waiting period for divorce or to drive up the cost of divorce or to force them to prove their spouse’s misconduct may in fact reduce the incidence of divorce, but they won’t do a thing to address the broken marriages. They will simply lead to more people remaining in broken marriages and sharing their misery more widely.

If that Texas legislator wants to use his power to improve the lives of his constituents, I have a suggestion for him: build a culture that encourages and supports marriage.

  • Make it easier and more affordable for couples who fall in love to learn how marriage would work.
  • Make it easier and more affordable for couples about to marry to engage in premarital counseling.
  • Make it easier and more affordable for spouses and their children to get counseling and community support so they can maintain a happy family.
  • Honor and celebrate couples living quietly in long-term, happy marriages as the community heroes they should be.
  • And if spouses must part company and divorce, make it easier and more affordable for them to do that too.

Wouldn’t it be wonderful if Texans could lead the way and show the rest of us how a state can support and encourage marriage? Don’t think it’s likely? Neither do I, but that shouldn’t stop us from dreaming, should it?

5 Key Facts You Need to Know About the Division of Marital Property

Our friends at the law firm of Wilkinson & Finkbeiner, LLP in San Diego were kind enough to provide us this article on key facts about the division of marital property. It looks useful, so I’m proud to share it with you.

5 Key Facts You Need to Know About the Division of Marital Property

By: Darryl Blank

Divorce can be a difficult and emotional process, especially if both parties can’t initially agree on terms that are mutually fair. Some of the most trying decisions lie with who gets custody of the children, who gets the money, the house, the ski boat and more. And these arguments can be substantially more heated if it’s involving a significantly large volume of assets. The largest, finalized divorce settlement on record in the U.S. was with Alec Wildenstein & Jocelyn Perisse. With a wealthy estate due to high-end art dealing and horse breeding and racing, the wife Jocelyn was awarded a total of $2.5 Billion up front, plus $100 million per year for 13 years. With such a large estate, it’s no surprise that it was such a heated, drawn-out case.

When the parties can’t come to a mutual conclusion, this is where the courts, as well as family law attorneys step in to determine the best way to divide up all the assets. There are some big misconceptions about divisions of property in a divorce proceeding.  Below are explanations of some important concepts about division of property.  

#1. Equitable Distribution Does Not Mean “Half of Everything”

 Equitable Distribution is a process for division of assets that’s used by most of the U.S. state courts. Many people believe that this practice means “equal” division. However in actuality it means fair division. So instead of a strict 50/50 split in which each spouse receives exactly one-half of the property acquired during the marriage, the doctrine of equitable distribution is used to look at the future financial situation of each spouse after the termination of the marriage.

The courts will consider many different factors when determining the amount of marital property to award to either party. Some of the most important factors for property division, as compiled by the Boston family law firm Wilkinson & Finkbeiner, LLP are as follows:

  • Length of marriage
  • Conduct of the parties during marriage
  • Age, health, station, occupation, amount and sources of income
  • Vocational skills
  • Employability
  • Estate
  • Liabilities
  • Needs of each party
  • Opportunity for each party for future acquisition of assets and income
  • Present and future needs of children
  • Contribution of each party to the acquisition, preservation, or appreciation in value of the estates of each party
  • Contribution of each party as a homemaker to the family unit

#2. Not All Estate Assets are Up for Grabs in Divorce

A typical misconception of divorce is that everything of value that a person owns is subject to forfeit during a divorce trial. This belief is false! There are certain types of assets acquired outside of the time of the marriage known as “Separate Property”, like an inheritance or business venture, for example. The courts will certainly consider an individual’s amount of separate property in determining what is fair for distribution in an asset division case, but the marital property is the only thing that is distributed by the courts in a divorce.

Keep in mind that Equitable distribution is used in as a final measure. If both spouses can come to a mutual agreement about the division of the assets, then there is no need for the court to use either Equitable Distribution or Community Property.

#3. Divorce and Property Distributions Laws Vary from State to State

Getting a divorce in Massachusetts can be completely different from getting a divorce in another state. And sometimes the divorce parties decide to relocate to a different state to take advantage of certain laws and maximize their court outcome. For example, In California you have to be a resident of the state for a minimum of 6 months before you can file for a divorce. And on the opposite spectrum, in New Hampshire you don’t even have to be a resident of the state. You simply walk across the state line, pay $180 for processing fees, and you can be divorced in one day. Two other states that offer the quickest and cheapest divorce processes are Alaska and Wyoming.

The most difficult states to get a divorce are Arkansas, New York and California. New York doesn’t allow “no-fault” divorces, so this leads to lengthy, drawn out and difficult legal battles, and filing fees are $335, with a minimum of 360 days processing. Extensive time regulations make Arkansas another difficult state for separating. According to an article in Newsweek, they have a strict 540-day standard processing time for divorce, and a couple must be separated for at least 18 months before they can even file divorce papers.

Distribution rules and regulations can vary from state to state as well. For example, there are some states that don’t currently use the process of Equitable Distribution, but rather another method referred to as “Community Property.” And this process looks at an accumulation of the assets and debts that were acquired during the actual term of marriage, and then divides them evenly to each spouse.

The U.S. states that currently fall under the category of Community Property States are California, Arizona, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin.

#4. Financial Debts are Distributed just like Marital Property

Similar to how marital assets are awarded, debts can also be assigned to each spouse as well. Most people usually think of dividing up the money, etc. when it comes to asset division, but accrued debt is also important in the picture, as it is used to factor someone’s total net worth. And the rules about how these are divided in a divorce depend on if the state that you are filing with is a “Community Property” state or not. In states that don’t have community property, the remaining debts are divided based on who’s name the debt is tied to. However, the states that follow community property, both spouses have responsibility for all of the debts that were accrued during the marriage.

The most common types of debts during divorce include:

  • Credit Card Debt
  • Home Mortgages
  • Car Loans
  • Child Support
  • Student Loans
  • And more!

The courts will also determine if any of the current debts are tied to any of the existing assets, and use that to decide the distribution. For instance, if there is a large mortgage tied to a house in the division, it might be determined that the mortgage debt goes to the party that is awarded the house in the division.

#5. You Shouldn’t Handle a Divorce Case on Your Own

If you find yourself faced with a complicated divorce, including the arduous task of divvying up your current assets, it’s important to do your research and learn the ins-and-outs of the divorce process – especially regarding the specific laws and procedures of the state that you are- or planning to- file. There are many speculations and myths about the divorce process going around, so one should understand the reality of these and coordinate your divorce case for success. In most cases, and especially in those states that don’t allow “no-fault” divorces, it’s important to get an experienced divorce attorney on your side to fight for you. Not only will they know the specific laws and policies of your state, but they should have experience in divorce cases, and will know the best way to fight for your assets and compensations that you deserve.

Assigning the Tax Exemption for Children in Divorce

Alabama child support guidelines are calculated based on the assumption that the custodial parent will be keeping and using the tax exemption for the children. So typically, divorce courts have little difficulty with this issue, routinely assigning the exemption to the custodial parent.

The recent case of Henderson v Henderson, DR 2150495 (Ala. Civ. App. January 6, 2017) is a rare exception. The wife appealed the trial court’s divorce decree citing several errors she thought were in it. The appeals court affirmed the trial court on its award of the marital estate and alimony, its failing to award her an attorney’s fee, its allowing the husband to decide what to retrieve from the marital residence, and its denial of her post-judgment motion.

The appeals court reversed, however, on the award of the tax exemption to the husband.

In A.M.B. v. J.M.S., 12 So.3d 1221, 1222 (Ala. Civ. App. 2009), this court reversed a judgment entered by a juvenile court that, among other things, awarded sole physical custody of the child to the mother, directed the father to pay child support, and directed that the mother and the father alternate yearly regarding which parent claimed the child for income-tax purposes. We reiterated Alabama caselaw observing that the Comment to Rule 32, Ala. R. Jud. Admin., assumed that the custodial parent will take the income-tax exemptions for the children in his or her custody and that a trial court may deviate from those guidelines if that court enters a written statement explaining its deviation therefrom. Id. In accordance with Alabama law, this court reversed the juvenile court’s judgment and remanded the case to the juvenile court “for that court to either (1) ‘enter a statement explaining its deviation from the guidelines in awarding the father the tax-dependency exemption in alternating years’ (K.H.L.[ v. K.G.M.], 782 So.2d [804, ] 807 [(Ala. Civ. App. 2000)]) or (2) amend its judgment to fully conform to the guidelines by awarding the dependency exemption to the mother as the primary custodial parent (see Walls[ v. Walls], 860 So.2d [352, ] 359 [(Ala. Civ. App. 2003)]).” 12 So.3d at 1222. Because the trial court in the present case also failed to indicate its reasoning for allowing the husband, as the noncustodial parent, to claim the child as a dependent for income-tax purposes, we reverse the trial court’s judgment and remand the case for the trial court to enter a statement explaining its deviation from the guidelines or to amend its judgment to conform with Rule 32 as discussed in A.M.B.

So now it will be up to the trial court how to deal with the exemption. It will either follow Rule 32 and assign the tax exemption to Mom, or it will enter a statement in the record explaining the reasons for its deviation.

A final personal observation: this divorce was filed in June of 2013. These two (and their four children) have been dealing with it now for 42 tortuous months, and it’s still not over. Hope you’re saying a prayer for them. I know I am.

Defending Credit Card Charges in Divorce

The case of Cowperthwait v. Cowperthwait, DR No. 2150252 (Ala. Civ. App. January 6, 2017) deals with four main issues, but this note will focus on the treatment of credit card charges the wife made shortly before the divorce. The two principal charges were a $2,857 charge for her attorney’s fee and a $2,500 cash advance. The trial court ordered the husband to pay the entire credit card bill of $5, 700, and the husband appealed.

The appeals court treated the two charges differently. Because the first charge was for an attorney’s fee, and because the appeals court said the trial court awarded no attorney’s fee “because the wife had made no claim for those fees,” the appeals court said the requirement that the husband pay this portion of the credit card bill could not stand. Judge Thompson’s dissent points out that the wife did try to raise the issue of attorney’s fees in trial and that her effort was thwarted by the husband’s objections, but let’s not try to guess whether she really raised it. The central issue from this case for people in divorce is, if you’ve charged an attorney’s fee on a credit card, you still need to defend that charge in the trial by showing it was reasonable, accurate, and attributable to the divorce.

On the second charge, the one for the $2,500, the appeals court affirmed the trial court on it because the husband did not submit specific evidence that the wife had used the funds for her personal benefit. The husband had pointed out the cash advance and had argued generally that, if she used the cash advance for her personal benefit it couldn’t be considered a marital debt, but he had not provided any evidence of how the money was used. “This Court does not have the obligation to search the record for substantiation of unsupported factual matter appearing in an appellant’s brief in order to determine whether a judgment should be reversed. Friedman v. Friedman, 971 So.2d 23, 31 (Ala. 2007).”

The lesson here for litigants is that an objection to a cash advance in divorce needs to be accompanied by specific evidence describing how the funds were used for the personal benefit of the person taking the cash advance. Conversely, if you elect to take a cash advance on a credit card during a troubled period of a marriage, you will want to create and maintain careful documentation showing that the funds you took out were used for the benefit of the marriage and/or the children. Also, be ready to show that personal expenses were paid from other funds that are not marital.

Alabama Allows One Parent Full Discretion Over the Other Parent’s Visitation

I’m not sure the Alabama Court of Civil Appeals realizes the full import of what it has just done. For as long as I can remember, judges have been careful to fashion visitation restrictions based on objective criteria. Specifically, they have been careful not to give to one parent the authority to stop another parent’s visitation with the child they share based solely on that parent’s opinion. About anything. Now in Watkins v Lee, Case No. 2150748 (Ala. Civ. App. January 6, 2017), the appeals court let stand a trial court’s ruling that a mother can in her discretion stop visitation with the father “if she believes that he is under the influence of drugs or alcohol or that he is placing the children in an unsafe environment or a place of danger.”

If, as they say, hard facts make bad law, these are hard facts. There’s no question that Dad is one bad dude. He has a history of drinking to excess, using and selling drugs, and beating up Mom. Like most violent men, he has a great story to tell about why. Basically, I only beat her up – repeatedly – ’cause she lied to me about my other child.

I understand the dilemma the trial court faced. It wanted to give this mother – who never married the father but shared two children with him – the strongest possible toolset to protect herself and her children. However, handing any parent the discretion to stop the other parent’s visitation is fraught with peril, as I fear we are about to find out.

What the trial court could have done instead would be to set up a bristling series of drug and alcohol tests that Dad would have to maintain in a clean state as a prerequisite to his continued visitation rights. Then Mom could stop the visitation for noncompliance. That’s objective; yet it protects the children. The trial court could also have required that visitation be supervised and/or occur at a designated public place where the children’s safety could be more easily protected.

The court’s opinion is Per Curiam, with a special concurrence by Judge Thomas and a dissent by Judge Moore. It’s possible that this bad law is happening because of bad lawyering. The Per Curiam opinion notes Judge Moore’s dissent and acknowledges the arguments he makes in it, namely that Dad’s fundamental right to access to his child is being controlled by Mom. But in a breathtaking dismissal, the main opinion says it didn’t need to consider those arguments because the father didn’t submit enough legal decisions backing them up.

“Despite their relevance to his appeal, the father has not referred this court to any of the authorities upon which the dissent relies in reaching its conclusion. Indeed, the father has not cited any authority discussing limitations on a custodial parent’s discretion to deny a noncustodial parent’s visitation.”

Justice Thomas offered a special concurrence in which she argues that the provision giving Mom the power to stop Dad’s visitation did not provide Mom more discretion than she would have in its absence, because a parent is never required to comply with visitation if it would be unsafe for the children. As Judge Moore points out in his dissent, however, “I agree that a custodial parent has a duty to protect the safety and welfare of his or her child from an objective threat of harm, even one posed by a noncustodial parent, but the restriction in this case authorizes the mother to deny the father visitation in broader circumstances. Under the language of the restriction, the trial court has given the mother the absolute discretion, based on her purely subjective observations or conclusions, to deny the father visitation.”

Judge Moore didn’t say it, but there’s also a vast difference for Dad in this case from where he would have been if Mom simply denied visitation because of concern for the children’s safety in the absence of a provision authorizing her to do so. If she denied visitation without authorization, Dad can bring an enforcement petition, with its accompanying risk that she will be held in contempt if she knowingly violated the judge’s order. Here, by contrast,  even if Dad is stone cold sober and thoroughly protective of the children, everything Mom will have done, even if she’s just confused about Dad’s sobriety, is in compliance with the judge’s order. Dad’s only remedy, apparently, is to seek a modification of the judge’s order on the grounds that there’s been a material change in circumstances. Tough standard.

The Status of Pets in Divorce

I remember vividly the conversation I had with Judge John C Calhoun as a brand new divorce lawyer in Jefferson County Domestic Relations Court. The documents I produced in my first uncontested divorce were – predictably – riddled with errors. Judge Calhoun slowly and patiently worked through them with me and pointed out each change I needed to make and why. I’ll always be grateful to him for that.

When we got to the language where I had called for the husband and the wife to take turns spending time with their golden retriever, I feebly protested his telling me to take it out. He looked at me – I already knew I was in trouble – put down his pen and took off his glasses. “Counselor, I ain’t gonna have nothing to do with visitation for a damn dog.” I got the message. One of those mistakes you need to make only once.

Judge Calhoun was expressing the clear consensus among family court judges in America, and for that matter across the world. Divorce courts have enough to say grace over without getting into people’s relationships with their pets. I routinely ask my clients whether there’s anything we need to say about pets, but their options are limited; they can describe who will own the cat, but that’s about it. The judge will not enforce, and will not allow parties to insert, provisions describing schedules, duties of care, or visitation.

Now comes word of a judge in Canada who has taken the time to spell out the reasons divorce courts are not interested in getting into the lives of pets. After acknowledging that “Dogs are wonderful creatures,” Justice Richard Danyliuk wrote in his ruling for the Court of Queen’s Bench for Saskatchewan, “After all is said and done, a dog is a dog. At law it is property, a domesticated animal that is owned. At law it enjoys no familial rights.”

It took him 15 more pages to lay out in patient detail why he would not order a visitation schedule for the three dogs belonging to the parties, 13-year-old Quill, 9-year-old Kenya and 2-year-old Willow. The article in the Washington Post doesn’t get into the minutiae of his reasoning, but you can probably guess at some of it.

“I strongly suspect these parties had other personal property, including household goods,” he wrote. “Am I to make an order that one party have interim possession of (for example) the family butter knives but, due to a deep attachment to both butter and those knives, order that the other party have limited access to those knives for 1.5 hours per week to butter his or her toast?”

The article quotes David Grimm, the author of Citizen Canine: Our Evolving Relationship with Cats and Dogs. According to Grimm, the status of animals as property means “they basically legally have the same status as a couch or a toaster.”

The dilemma that family courts face is this: pets may not be children, but they’re not simply property either. Pets can now be beneficiaries of trusts in most states, and occasionally, courts appoint lawyers to represent them. All 50 states prohibit cruelty to animals.

“Clearly, nobody’s going to fine you for setting your couch on fire or taking a bat to your toaster,” Grimm says.

Our views and shared understanding of our relationships with our companion animals have evolved significantly over the last century. It’s only in the last few decades that society’s view of animal cruelty has permitted states to treat animal cruelty as a felony rather than a misdemeanor. As society’s views change, it’s certainly possible that family courts will follow suit. However, I’m not yet seeing any sign of it in the courts where I practice.

So where does that leave pet lovers when they divorce today? Exactly where they’ve been for the last century or so. The judge in their divorce case will allow them to specify who gets the standard schnauzer named Rascal or the grey and yellow cat named Precious, but those parties will strike out (and spend extra money for no good reason) if they try to specify anything else in their divorce decree.

Gwyneth Paltrow and the Pernicious Myth of the Perfect Divorce

Oh my. Now we have Gwyneth Paltrow, of all people, proudly proclaiming that she and Coldplay lead singer Chris Martin have the “perfect” divorce. “He’s at my house every single day. We still have our family life.”

Paltrow says she thinks she and her Ex Martin, who split two years ago, “have contributed something positive to the culture of divorce.”

Good for them. If they’re together every day, and if, as she says, Martin would still “take a bullet” for her, that’s good news for their children. But let’s please not get this confused with the real world populated by real people getting real divorces.

My work is focused on divorce for couples who are able to be reasonably cooperative, and I certainly see more than my share of couples who still have a great deal of affection and respect for each other even as they work through the gritty details of their split-up, so you would expect me to be sympathetic with, even encouraging of, the rosy outlook about divorce Paltrow promotes. The problem is that it’s wildly unrealistic and therefore more likely to harm than help.

Divorce hurts; even the most cooperative divorce is full of searing pain for both spouses. It may be different in character and come at different times, but pain for both spouses is almost guaranteed in divorce.

Gwyneth and Chris have celebrity lifestyles that may allow them to adapt their schedules to spend as much time as they wish with their children, but most of us don’t. Taking care of children is difficult nowadays even in intact families; it becomes more challenging when the parents live in different households.

There’s every reason for couples who know they need to divorce to cooperate with each other, to stay in regular communication with each other, and even to laugh together as they work through the details of their divorce. But it won’t be perfect; it won’t even be pleasant. Arguing that it should be doesn’t “contribute something positive to the culture of divorce;” it just adds yet another way for divorcing couples to feel like they’ve failed.

Prenups and Intellectual Property

Regular readers know I believe prenuptial agreements are overused. Too often they make the injustice of divorce worse by rewarding a breadwinner spouse (usually the husband) and leaving the stay-at-home-and-care-for-the-children spouse (usually the wife) poorer than she would have been under normal principles of family law.

Unfortunately, it appears this trend will be made worse by what the New York Times is reporting as a burgeoning trend of millenials signing prenups to protect each spouse’s intellectual property rights, like copyrights, web site startups, books written, etc.

It’s not at all unusual for spouse A to support spouse B while B is working on a book, or a web site, or a startup company. By definition, B contributes nothing in the early stages of the work, and maybe the family lives on beans and corn bread, but both spouses are hopeful that they’ll both enjoy a big payoff when the work is finished or at least further along. If their marriage ends after A has been providing support but before there’s any meaningful payoff, normal principles of family law would at least consider an argument that, particularly after a lengthy marriage, the result of B’s work is a marital asset available for division between the spouses.

On the other hand, if A and B signed a prenuptial agreement 15 years ago that allowed each spouse to walk away from even a lengthy marriage without the need to share intellectual property with the other, A gets the shaft. Spouse A worked hard, ate all that beans and corn bread (probably after being the main one who cooked it), and now gets nothing, while B goes on to sell that great startup to a mega-corporation for billions and retires to a  ranch in Nevada to raise Australian show horses. Seems unfair to me, and perhaps to you too.

In most states, though, prenuptial agreements don’t need to be fair to be enforced if both spouses have their own advocate at the time they’re negotiated. And having been the advocate for a few of those spouses, I can tell you that the advocate has little influence and almost no leverage when both spouses are eager to say “I do.”

If you know someone who’s caught up in romance and is surrendering to their lover’s demand for a prenup, please share this with them. They may still agree to the prenup, but at least there’s a better chance they’ll remember the risk down the road.

The Spilling of Data in Divorce

When husbands and wives divorce, data often spills out in embarrassing ways. When they engage in a contentious, mutually destructive divorce, data can flow out in a swiftly flowing river that may change their lives forever. This article in the New York Times provides several instructive examples.

When both spouses hire separate high-powered lawyers to represent them, and those high-powered lawyers each hire high-powered consultants to ferret out fragments of information about the other spouse, the results can be devastating to both spouses. Most of us never stop to think just how much our personal computer, iPad, or smartphone reveals about our lives. We are joined to them so completely, so seamlessly, that they become our confidant, our filing cabinet, our doctor, our therapist, our garbage can, and our mommy, all rolled into one.

One of the more striking quotes from the article is from one of those lawyers: “Anything they put in a text or an email or in social media, assume it will be blown up onto a poster board in a courtroom one day.”

Even in the friendliest divorce, the public record the spouses create in their divorce can reveal information about them they both would prefer stay private. That’s why I work to make the documents I file in cooperative divorces as boring as possible. Any time I can omit detail without compromising clarity, I do. Both spouses seem to appreciate it. That’s one of the many advantages of cooperative divorce. It’s particularly applicable to high profile and wealthy couples, who have the most to gain from keeping their parting quiet and amicable.

Because this page discusses my legal practice, I need to say this: no representation is made that the quality of the legal services to be performed is greater than the quality of legal services performed by other lawyers.

RIP Alabama Common Law Marriage

When you ring in the new year December 31, bear in mind that you’re sounding the death knell for common law marriage in Alabama. You can read HB332, which makes the change. Before you assume that means the end of all conversations about common law marriage, though, know that HB332 does NOT take away the ability to assert a theory of common law marriage in Alabama divorces. Specifically, what it does is to establish that a common law marriage cannot begin after December 31.

The bill (which will become effective as law December 31 at midnight) specifically provides that an “otherwise valid common law marriage entered into before January 1, 2017, shall continue to be valid in this state.”

How does a common law marriage become effective? By a shared intent on the part of both the man and the woman to be husband and wife. Obviously, we can’t crawl up inside his head and hers and know whether and when each intended to be a spouse, so the courts look at the behavior of both spouses, trying to discern from what they said and did whether they considered themselves married.

As a practical matter, one can assume that the consequence of HB332 are that attempts to demonstrate the existence of common law marriage will now be limited to evidence of what each spouse said and did before January 1, 2017. And that means common law marriage will become harder and harder to prove. Eventually, more judges hearing divorce cases will have never given any thought to common law marriage; to them, claims of its existence will seem increasingly exotic and implausible.

Read that, it’s simply a matter of time before common law marriage really is dead in Alabama.

Same Sex Divorce Is Now Routine in Alabama

In the wake of the historic same sex marriage ruling from the Supreme Court in Obergefell v Hodges, it seemed it would take forever for Alabama to accept it as the law of the land. The marriage part is still up in the air, with probate judges in a handful of states reenacting the closing of municipal swimming pools in the 50s. Probate judges in several counties (including Elmore County where I reside) are avoiding issuing marriage licenses to gay couples by simply folding their arms and refusing to issue marriage licenses to anyone.

As a boy growing up in segregated Montgomery, I know from personal experience how frustrated and angry white children and black children alike felt about the blunderbuss impact of closing municipal swimming pools just so black children couldn’t swim in them. I can only imagine how silly it seems to most young straight couples (who tend to be much more open minded about homosexuality than us old people) that the judge in their county is so homophobic that he’s willing to deny them a marriage license in the county where they live just so he doesn’t have to do anything nice for gay people.

But I digress. This is not about gay marriage. It’s about gay divorce, and here the news seems to be both simpler and better. I am not now aware of any Alabama county where judges are resisting granting divorce decrees to gay litigants.

In my world of cooperative divorce, I have obtained divorces for both lesbian couples and homosexual male couples. There is a tiny wrinkle, namely that the state’s electronic filing system isn’t yet upgraded to accept the input of two males or two females as spouses. We’re working around that little glitch, though, and the process of obtaining a divorce for gay couples seems to be flowing smoothly.

After scratching my head about it for awhile, I’ve decided to charge the very same flat rates to gay couples for a cooperative divorce that I do to straight couples. There are a couple of extra steps required, but not enough to justify charging more. Besides, we make life hard enough for gay couples as it is without my levying a divorce surcharge on them.

Because this page discusses my practice, I need to say this: no representation is made that the quality of the legal services to be performed is greater than the quality of legal services performed by other lawyers.

Divvying Up Kids When the Kids Aren’t Kids

The percentage of young adults living with their parents, step-parents, grandparents, and siblings is up sharply, from 25% in the fifties and 33% in the nineties to 40% today, the highest since the Great Depression. Here’s a story about it from CBS, and another from Fortune.

So divorcing couples who thought their children would be grown and gone by now are finding themselves in the awkward position of negotiating with each other about how to share the cost of caring for a 25 or 32 or 44 year old child who’s able-bodied and thoroughly functional but not yet self-supporting. And they’re doing so without any help from the courts, who view any able-bodied adult who’s reached the age of majority as self-supporting by definition.

I worked with Harry and Florence as they negotiated the issues of their divorce. Their discussions about caring for their 28-year-old son Toby were no more painful than the other issues they confronted, but Harry and Florence did have different points of view. Specifically, Toby lived with Florence rent-free, and Harry thought it was time either to charge him for room and board or to ease him out of her home. Florence wasn’t willing to force this on Toby, though, so she basically agreed to eat the costs of caring for him with no help from Harry.

I had no contact with Toby, so I can only guess at what he’s thinking about all this. It’s tempting to view him as a deadbeat who’s only too happy to sponge off Mom, but I have to think it’s more complicated. Surely this is not what he envisioned for his life, so he must be — at least on some level — grieving over the extent to which he still depends on his parents financially. Florence, and to a lesser extent Harry, are innocent victims here, but it’s entirely possible Toby is a victim too.