To File or Not to File

• April 16th, 2019
• Family Law

To File or Note to File– Is it Really a Question?

(Analyzing HBO’s “Divorce,” Season 1, Episodes 2-9)

 

In my last article related to HBO’s series “Divorce,” I tackled one of the most common issues that comes up in the context of marriage – fault in the break-down of the marriage. We now turn to an analysis of how the actors in “Divorce” (as well as Wife and Husband in a marriage) often convey to children that they are getting a divorce and the common pitfalls involved therein. As well, I will analyze the common questions (and things to consider) in determining whether – and how – to file/serve divorce papers.

First off, let’s just start by saying that there is perhaps nothing worse than having to tell your kids that you are getting a “Divorce.” If you watched Season 1 of HBO’s “Divorce,” you know that it takes three episodes and a stern rebuke from a mediator before Robert and Francis have the gumption to tell their children, who are still fairly young at this stage. What we see in “Divorce” is frighteningly accurate portrayal of how telling children typically goes down and it’s not pretty, but the end result provides a valuable lesson.

Let’s start with timelines. In the case of Robert and Francis, they agonize over the decision to the point that telling the children becomes an event in and of itself. When they are finally seated at the dinner table and have come to a meeting of the minds on how the children are going to be told, the audience is collectively holding its breath to see who is going to be the “bigger person” in terms of conveying this information. In this case, Mom (Francis) tries to sugarcoat the subject by offering to the children that Mom and Dad are “trying to figure out how to be a better family. That is when Dad (Robert) intervenes, finally delivering the maturity that we have thus far not seen on the show:

“Your mother and I are getting a divorce” Robert tells the children matter-of-factly. “It’s awful. If there was any way that we could’ve figured out how to stay together then we would, but we just can’t. But the important thing is that neither of us is going to leave you.”

I think it is important to note Robert’s exact words here, as he could not have put it much better.

The very fact that parties are going through a divorce usually means that there is a failure to communicate between Husband and Wife. Difficulties in communicating are only magnified when it comes down telling your children that you are getting a divorce, but this can often be avoided. In this case, Francis and Robert DuFresne have determined that it is best to tell the children together. While this is not always possible with parties going through a divorce, particularly if there are issues of domestic violence or mental health, it can be very helpful. As one sees in “Divorce,” the task is often easier said than done and having a partner to back you up can come in handy where words fail. If the children already have counselors or a counselor involved, such professionals can often aid in this difficult process; however, it is ultimately up to the parents to communicate this information absent any intervening issues which would prevent either from doing so. In “Divorce”, the children’s reaction to being told is priceless:

“Can we go upstairs now?” says the son, who is older than their daughter. The children’s reaction is the lesson here: Yes, it is awkward. No, it is not pretty. However, agonizing over the process is often more difficult than the process itself. As we study the children’s reaction at this point, we are reminded of the words of the mediator in this series. “Tell the children.” Your attorney will tell you no differently. You find a way to do it in the most effective and straight-forward manner available. Your children – and your legal bill – will thank you for it.

As well as they handle telling the children (albeit late), the way that Robert and Francis handle the filing and service process leaves much to be desired and is also a cautionary lesson. I think it is important to note that at the point Francis does decide to file, she has already been through at least one attorney and chosen to go with another one. In cases where we are dealing lots of assets, waiting to file can be fatal. In South Carolina, martial property is typically determined as property which accumulates from the date of marriage to the date of filing (in some cases, your attorney may be able to argue the date of separation). Thus, if you have a large retirement account, for example, and the market continues to go up, but you wait to file, the passive gains you continue to accumulate in this account prior to separation and filing will be considered as part of the marital estate.

As far as filing, in seeking an attorney who appears to be more of a “bull dog,” Francis may have underestimated how this decision would affect the very process of filing and serving the divorce paperwork on Robert. As we see in Episode 9 of “Divorce”, Francis has Robert served at one of the children’s basketball games while Robert is coaching this game. It is very clear that Francis was not aware that her attorney was going to serve Robert at this time and in this manner, though she no doubt knew that her attorney was going to file. The lesson in this is to always communicate with your attorney on how you want the other party to be served with the divorce pleadings. To be clear, serving the papers by process server directly on the other party is typically the only surefire way to ensure service is effectuated; however, the parties can exercise some measure of control over where and when the papers are served. In some instances — such as where the parties already have an agreement, for example – having the other party “accept” service of pleadings by signing what in South Carolina is called an “Acceptance of Service” may be acceptable and avoid the painful process of serving by process server. However, this must be determined on a case-by-case basis and your attorney will be able to guide you as to which and under what circumstances this could be done to potentially save on costs. Bottom line: communicate and ensure that you are involved in the process of service. Again, your children – and your legal bill – will thank you for it later.

So, what happens when the parties further ratchet up drama in the context of a divorce where custody issues are involved? Find out in my next article, which focuses on the Season 1 Finale of “Divorce.”

Melissa Miller is an attorney in South Carolina focusing on family and workers’ compensation/personal injury law with The Miller Law Firm, P.A. She can be reached at melissa@themillerlawfirmpa.com.