ASK STACY: More Questions from My Readers and Listeners
I am excited to be back with ASK STACY, part 2, featuring its logo! You asked, and I answered – and happily, I received even more questions, including a few fascinating and specific ones this time. I genuinely appreciate knowing what’s on your mind, so please keep the questions coming, and I will answer them the best I can. Of course, these responses are not legal advice; I am merely sharing my collected wisdom over my nearly four-decades-long career as a family law attorney.
Let's jump right in!
QUESTION: Stacy, do marriage and divorce laws apply the same to heterosexual and gay marriages, and should gay marriages have prenups?
Stacy: First, I have represented gay men and lesbians as domestic partners and spouses, so I have experience in this area. I need to say it all depends on what state you’re in. Different states view gay marriage differently. Some allow it, while others don’t. Obviously, in those states that don’t support gay marriage, the issue of divorce is moot – at least in the eyes of that state’s laws.
In the case of states that recognize gay marriage, such as California, whether you are the same sex or the opposite sex is irrelevant. The marriage and divorce laws are the same, whether you are straight or gay. However, the tax ramifications will differ for a gay couple because of some Federal laws.
Should there be prenups for gay couples? First, I don't like calling them straight couples or gay couples anymore. Yes, if a person’s particular circumstances warrant it, then they absolutely should have a prenup. No question. But asking for a prenup can also be a red flag. For example, a young person is marrying another young person, and there is no inherited wealth involved. In this scenario, the interest in a prenup could signal that the person asking for the agreement wants to restrict financial sharing down the road. And to that, I would say: “Run for the hills!” Whether you are straight or gay is irrelevant at that point. In that particular example, this person is showing their potential spouse that they’re not interested in being a sharing partner.
QUESTION: What legal action should a spouse take during a separation with respect to paying the bills? Are there any delineations between being separated, on the way to being divorced, in the process of divorce, or simply divorced?
Stacy: Yes, certainly in California, if you are separated, whether you are on the way to divorce or not yet on the way to divorce but simply living in separate households, and you haven't decided about divorce, you still need to have bills paid. If you’re the earning spouse, you must take care of the non-earning spouse. If you are a non-earning spouse, you must act a certain way so you don't go overboard in spending. You have fiduciary duties toward each other to help take care of one another, and the more you can have a mutual understanding of what that means and how funds are allocated, the less likely a fight will occur later.
And suppose you are in the process of a divorce. In that case, you may choose to keep the bill payment process fluid. Still, it is my opinion that agreeing on spousal support (alimony) and child support and making those payments pursuant to a written agreement or, better yet, a court order helps avoid any post-separation accounting of funds spent. If you cannot agree on spousal and child support amounts, a court will need to decide.
There are obligations to support one another and your children; our code in California lays out how to determine spousal and child support.
QUESTION: We are separated and have started talking about divorce. Is there any advantage or benefit for me to start the divorce proceeding, or should I allow my wife to initiate it?
Stacy: In California, when one person communicates to the other in clear and certain terms that he or she sees no hope for reconciliation and wants the marriage to end – and one's actions jibe with those words – then in the eyes of the law, anything earned from that point forward for services to be rendered is that person’s separate property. Filing for a divorce helps solidify the date of separation, but only if one’s actions continue to jibe with the words of a final break. Thus, filing is a compelling financial rationale if you are the primary earner.
QUESTION: Can you share some advice on protecting the children from the pain and suffering caused by their parents’ separation or divorce?
Stacy: I certainly do have advice. First, do not fight in front of the children. Do not talk about the divorce in front of them. Do not make them testify. And avoid a child-custody battle, if possible. You should try not to show how things upset you. Remember, you are the parent, and as such, you should avoid forcing your kids into becoming your parental figures. Try to make sharing custody time with your spouse as easy as possible. Support your spouse. Never criticize him or her in front of the children. Remember, your children are a product of both parents. So, deal with adult business separately, and let children be children. In the end, always err on supporting the children's relationship with the other parent.
QUESTION: There is parental money involved, and a family trust, too; I feel I deserve a piece of all that, but I cannot live with my toxic spouse anymore. How can I ensure that I get what's due to my kids and me?
Stacy: I have some bad news for you. In most states, certainly in California, inheritance is separate property. It's not due to you; it's due to your spouse. Plain and simple. So, my advice is this: Life is too short to be in a miserable marriage only to be able to share in the fruits of an inheritance. The inheritance belongs to your spouse. Sure, it may elevate your lifestyle, and it might impact financial support in the future for you and your children, but you must not lose sight of the fact that it is not money you’re entitled to under the law.
QUESTION: Besides a prenup, what other steps can a couple take to prevent a messy divorce?
Stacy: That’s a great question, and I wish more people thought practically like that. Having a prenup is not a guarantee of a “non-messy” divorce. How prenups are viewed in court varies by state. And, of course, no prenup can help with a custody dispute. I am a huge believer in prenups if a significant amount of separate property is involved, also for a second or third marriage, and where children from a prior relationship are involved.
I always encourage couples and individuals to keep good records of their lives, keep well-organized finances, and document other essential arrangements. It’s always a good idea to communicate well with each other. Remember, you can get coaching to help improve those skills. And if you’re considering separating, please hire a therapist to assist you as you are uncoupling. Throughout the relationship, marriage, or separation, try to be generous and kind to each other. Lest we not forget, it takes two to tango, and though you may sometimes feel like you’re dancing alone, you are most definitely not.
I would love to provide more answers, so please keep those “Ask Stacy” questions coming. Email me at: AskStacy@mcgriffinmedia.com. I will do my best to share a response in an upcoming column.
This article was first published by Stacy D. Phillips on LinkedIn on March 29, 2023.