Two Divorce Lawyers Watch "Divorce"

What the show gets right and wrong about divorce in New York

by Marcy Katz and Tom Kretchmar

“Divorce” is a new HBO series written by Sharon Horgan (“the brutal romantic behind ‘Catastrophe’”) starring Sarah Jessica Parker and Thomas Haden Church as a middle-aged couple raising two children in a deteriorated marriage in the suburbs of New York City. In the series premiere, we learn that the restless and unhappy Frances (Parker) has been unhappy for some time but the idea to divorce Robert (Church) comes as an epiphany. We also learn that she’s been in an adulterous relationship with a New York academic-type named Julian (Jemaine Clement) for the past year. Frances finally spills her guts to Robert about her dreams of divorce at her friend Diane’s birthday party. Robert literally spills his guts in response, and things get messier from there.

For any divorce lawyer, the most cringe-worthy moment in the debut episode had to be at the very end, when Robert threatens Frances with making their children hate her. In the world of child custody battles, this would be called “alienation” — when a parent deliberately damages the relationship between a child and the other parent. Whether it’s verbal (e.g., routinely saying disparaging things about the other parent to the child) or behavioral (e.g., deliberately keeping the other parent in the dark about a child’s upcoming extracurricular events, so the child develops resentment), alienation is very bad, because the primary concern of a New York court in a custody matter is the best interests of the children.

“Best interests” is a legal term of art, and the courts work under the ordinary presumption that it is in children’s best interests to have positive relationships with both of their parents. Accordingly, when it comes to making custody decisions, proof of alienating behavior can be very prejudicial. It can affect not only custody determinations but also child support: in a recent New York appellate decision, the court suspended a mother’s child support as a penalty for her alienation campaign against her child’s father. If Robert acts on his threat in upcoming episodes, it could turn out very poorly for him.

Frances’s comment to her friend Dallas (during a train ride in from Hastings-on-Hudson) that a divorce might make her and Robert’s children, Lila and Charlie, “happier” could be interesting foreshadowing. While happiness (not a legal term of art) isn’t perfectly synonymous with best interests, Frances does appear to be thinking constructively about the children and not just about herself. This is great, both as a matter of personal character and in terms of her legal case — courts take meaningful notice of this stuff and take it into account when rendering their decisions.

Frances’s idea, mid-episode, of moving into her paramour Julian’s city home for a few days (presumably leaving the children behind in the suburbs) was also noteworthy from a legal perspective. (“Paramour” may sound like antiquated vocabulary but it’s actually routinely used in the world of contemporary divorce law). If a parent moves out of the family home before a formal (even if temporary) custody arrangement is in place, a court may draw adverse inferences: is that parent serious about being involved in the children’s lives? Furthermore, “parenting time” (i.e., “access” or “visitation”) will, until a formal agreement is reached or a court order is in place, effectively be at the whim of the parent still at home. Frances only seems to visualize a few days at Julian’s apartment, but if she stayed on a more extended basis, there’s little doubt that any attorney retained by Robert would use it as ammunition against her.

Speaking of the marital residence, Robert’s vindictive changing of the locks after learning about Frances’s infidelity is also troublesome. Generally speaking, one spouse should not expect to be allowed to unilaterally exclude the other from the family home, even if the excluding spouse is (as Robert claims to be) the home’s legitimate sole owner, and even if the excluded spouse has (like Frances) been in an adulterous relationship. A spouse who aspires for what’s called “exclusive use and occupancy” of the marital residence has to seek it by court order, not by “self-help” (a legal term of art that essentially means D.I.Y. problem-solving). Unless the spouse doing the kicking out is a domestic-violence victim or the spouse getting kicked out has already voluntarily established an alternate residence, exclusive use and occupancy is unlikely to be ordered by a court. Bottom line: while a divorce is pending, both spouses are generally entitled to stay in the home, irrespective of who owns it, until a mutual agreement is reached as to who vacates and when.

As for Frances’ affair: it’s exceptionally rare, these days, for a spouse to be “punished” by a court for adultery. Although adultery was relevant to divorce proceedings back when one spouse’s “fault” had to be proven get a divorce, New York has been a “no fault” state since 2010. As a result of this change, adultery is really only relevant in a divorce to the extent that the adultery depleted marital assets or genuinely harmed the children.

An unlikely but graspable example of the former would be if Robert were to prove that Frances had bought Julian a Ferrari using their joint marital funds. Robert would have a claim to recoup his share of those joint funds as part of the resolution of the divorce. An example of the latter would be if Frances were always missing out on family birthdays and holidays because she was busy cavorting around with Julian. So far, there’s no indication that Frances’s adultery has affected the children in any way that a court would take notice of and care about. Realistically, a parent who has by every ordinary measure been a “good” parent to his or her children should not expect to be penalized for their adultery when it comes to custody decisions.

We’re interested to see where the show goes from here. Early in the premiere, when Frances finally admits that she wants a divorce, she admirably proclaims “I want to save my life while I still care about it.” The idea of pursuing a divorce can be incredibly frightening, and a disheartening number of people who know they should do it hold off for fear of the process, the immediate impact, and the long-term consequences. Frances is a forty-something working mother of two young children. She’s as likely a candidate as anyone to feel overwhelmed by the prospect of a major life overhaul. But this is a tremendous step forward. Now we’re going to find out how difficult her journey is going to be. It’s not always such a dramatic process in real life, but it seems unlikely that Frances and Robert would be gifted an easy-peasy one as characters on a primetime television show.

Marcy Katz and Tom Kretchmar are New York divorce lawyers. They work at Chemtob, Moss & Forman, LLP, a matrimonial law firm based in midtown Manhattan.