Author: JGL Law

David Bulitt: [00:00:00] Welcome to JGL Law for You. JGL Law for You is a podcast by lawyers, but not for lawyers only. On JGL Law for You, we will be discussing a wide array of topics to help you navigate the many legal processes, developments in the law, other current events, and how they may affect you, your family, or your business.

I’m back here with my partner and family law expert, litigator, family lawyer in Maryland and the District of Columbia, Chris Castellano. Welcome aboard, Chris. Good to have you back this month.

Chris Castellano: Thank you again, David

David Bulitt: Today we have a very interesting and somewhat different conversation. We’re peeking into the news, and anyone who has not been under a rock or looks at the news has been advised of or seen information regarding the Lindsay Clancy trial, which is taking place in Massachusetts as we speak.

This is a young woman who was accused of, and has since admitted to, murdering her three young children. Now, we are not here [00:01:00] today to talk about the merits of that case, the merits of her insanity defense, or any other such thing, but what the case does is bring up a very interesting, interesting issue that arises in the area of family law, and that is specifically what effect, if any, can the use of social media, and many of us have our Facebook pages, our Instagram pages, X, LinkedIn, and various other social media platforms.

What effect can our posting, the information that we put up on those social media pages, have on our own custody cases? So, Chris, take us off and let’s start there. And I know we’ve got the Clancy trial as a backdrop. We’re going talk more about that, but let’s talk specifically at the moment about the impact and then concerns about social media postings on a divorce or custody case.

Chris Castellano: Yeah, David, I mean, it’s [00:02:00] always such an interesting issue. You know, social media is so ubiquitous, and it has been ubiquitous for quite some time now. You know, it’s relatively old hat to say that this is new technology that can be used against you in a trial, right? You know, we’ve, we’ve had, since I’ve been practicing, we’ve had social media that is evidence and can be used as evidence in a trial.

But whenever we have some topic that enters the social zeitgeist, which is right now, this Lindsay Clancy trial, this issue comes up again, which is people going out there and, and posting their opinions, posting their thoughts, posting their analyses, and the question variably becomes, “Is this going to play a part in my custody trial?”

Right? You could say the same about your alimony trial or hearing or your, you know, request for some type of distribution, your family or, or any other non-family related litigation certainly. But [00:03:00] for our purposes today, yeah, how can it affect custody? And we’re not suggesting, just to be clear to our listeners, we’re not suggesting that you can’t use social media, you can’t use your right to speak to post an opinion.

The question that I want to instill in our listeners is when you post something online, are you comfortable explaining what that post means to a judge? Right? ‘Cause that’s the question. You can post whatever you want all day long, and that’s fine, but are you prepared to explain what that post means to a judge in the context of a custody case?

David Bulitt: Tell us a little bit about how someone’s posts can become evidence. What sort of factors can they support in either the other side’s argument or their own argument that they’re fit or unfit for custody?

Chris Castellano: Well, that’s right. Here in Maryland, the court is looking at the best interests of the children or a child in a custody case, right?

There’s a [00:04:00] host of different factors. We have a podcast where you and I discuss those factors, if I am not mistaken, in the beginning part of the summer. And so our listeners can go to that podcast and get a primer on the factors in Maryland. But those factors are implicated, or can be implicated rather, in your various different forms of evidence and, for our purposes today, the social media posting.

So, factors such as your parental fitness, your character, ability to communicate with your other co-parent, willingness to communicate with your other co-parent, supporting the relationship between the other party’s extended family or their family, and overall judgment, right? Overall judgment I saw a post this morning preparing for this podcast, and it was a, you know, young mother frustrated with her baby and, uh, went in to the baby’s room saying, “I just tried to put this kid down three times, and won’t stop crying.

I fed you, I burped [00:05:00] you, I did this and that and the other.” And in the video was yelling at the kid, right? I mean, I get it. It, it could very well be that there’s no kid in that video, right? ‘Cause they didn’t show the kid – And, and so you, you have to remember that a lot of these videos that we’re seeing online, they’re, you know, a lot of the internet’s created for the purposes of getting a rise out of people.

Okay, set that part aside. Let’s assume for the purposes of our discussion that these are legitimate videos, and you have a case against your spouse, and he or she is making these videos online yelling at that kid, right? So, what does that video show? That video shows, number one, a judgment issue. Number two, a fitness issue, right?

And number three, it shows a willingness to act as a guardian of that child in that moment, right? If you’re, if you’re yelling at that child, a defenseless infant crying, right? You know, what does that say to a judge? And that’s what we’re focused on. And how do you use this as [00:06:00] evidence? Well, whether it’s a static post or whether it’s a video, it’s going to be utilized in the same way as your emails were utilized, the same way as, as pictures from a detective were utilized, right?

It’s a matter of printing off that post as the, in the lawyer’s office, and we bring in three or four or five copies and, and hold it up to the judge Right? Or if it’s a video, we roll in the TV, plug in your computer, and there it goes up on the screen. We mark it as an exhibit, and it goes into the repository of that case as far as evidence goes, and the judge is going to consider that piece of evidence.

David Bulitt: Yeah, I mean, people, and we’ve found this, I know you have and I have, it often doesn’t matter how many times their lawyer talks to them about what their testimony ought to be or how they’re prepared. People often in custody cases want to make themselves look like terrific parents. And many, many times I have seen, I’m sure you have, parents say, “Oh, no, I don’t yell at my kids.

I speak, I don’t yell [00:07:00] at them.” Well, first of all, I’ve never met a parent who didn’t raise his voice, their voice to a child once. Okay? So the “never” hurts. And then, then we pull up this Instagram post, you know, where he or she is screaming and pulling their hair out and the baby’s screaming in the background.

That’s a sort of a, a more benign issue than what we’re talking about in the Clancy case, but that’s a damaging piece of evidence, something along those lines. So, let’s talk about context and how that changes or can disappear sometimes when a piece of social media, a social media post, reel, story, whatever it may be, is being recreated in a litigation context.

Chris Castellano: Well, that’s right. This is tough. The ability to communicate is one of the more difficult concepts in human history, right? The Tower of Babylon comes to mind, right? So, what we’re talking about here, that ability to communicate and communicate those thoughts itself, it’s exaggerated because when you [00:08:00] and I talk, we talk separately, right?

We’ll have a conversation. If that conversation was written down or put into a different sphere, then the context in which we were talking is lost, right? That’s the basic concept of, of what we’re talking about here. When you make a post, or let’s just say you’re at a playground, you make a video, and, and your kid’s running off, and you say, “Man,” to your best friend, “It would be a lot easier if I just left, go get a drink,” and then I came back ’cause they’re sitting at the playground, right?

Well, you and I in the context of a custody litigation, we would say, “Man, leave him for 10 minutes to go get a drink is a terrible fact pattern.” That is a terrible fact pattern. But in the context, the person’s, “No, this is just a sarcastic joke,” right? They could be just making a joke about the fact that they’ve seen other people saying ludicrous things online, and they’re…you know, so that context can get lost very, very quickly.

You know, it’s interesting. What comes to mind to me in this [00:09:00] conversation is the episode from The Office where Steve Carell’s character is giving a deposition, and he does one of those that’s what she said jokes. And the deposition court reporter reads it back, and he says, “Well, you know, the delivery’s all wrong,” right?

And so that says it best, right? When you’re in litigation, in the context of litigation, how something is presented can change drastically and not only by just the delivery itself, but by not presenting the full context.

David Bulitt: And again, alongside of that, right, is understanding that the audience to whom you intend this post to be your, your 1,100 followers or whatever it may be, may not at all be the audience who is looking at it later and wondering what you meant by this particular post.

This kid is driving me nuts. I’m going to jump off of a bridge. I’d like to blow my brains out. I gotta get out of here. I may never come back. You know, that may be jokey kind of things, and in [00:10:00] the context of a video where somebody’s laughing and smiling, it may look very, very different when you’re in a different ballpark.

Chris Castellano: Well, that’s right. And you know, a good takeaway for people, especially if you’re in contested custody cases, active litigation, this should be on the forefront of their minds. But even if you are not there, but you suspect that maybe in a couple years you’re, you’re angling towards that position, who is not amongst your followers and fans and people that you usually digest your media?

You know what? You should assume it’s the judge. The judge is not your follower. They don’t know what you typically say. Opposing counsel, that’s not your follower, right? And so they’re going to sit there, you’re going to be on the stand, and they’re going to ask questions like, “You wrote this, right? You know, this angry post about your kid.

You were talking about your child, weren’t you? And you were angry when you wrote it, weren’t you? And yet you’re asking the court to make you primary physical custodian,” right? So, you’re going to [00:11:00] have to reckon with some of these posts, and the more posts you make, the worse it may be for you.

David Bulitt: Again, not necessarily for all of us, but for certainly for folks who are potentially separating, divorcing, or alternatively getting some sort of a custody dispute with their co-parent, there’s one sort of golden rule they should follow, isn’t there?

Chris Castellano: Well, that’s right. When you’re posting about your family, one of the golden rules, a golden rule, is to just kind of keep your head low. But assuming that we don’t tell them to interrupt their whole lives, that golden rule is keep the focus on your kids. Right? Keep the focus on your case. The court system and the judges, their primary focus is the best interest of those kids.

And, so, if you can keep your public-facing statements, posts, whatever it may be, as easily explainable relative to the best interest of your kids or focus on your kids, I think that you’re okay.

David Bulitt: [00:12:00] I think that, again, running alongside of that is sort of the same rule that I used when I talked to lawyers about responding to an email, when emails were in their early days of electronic mail, because it’s always easy to send a response, hit send, and go without thinking about it.

And I tried to counsel lawyers to say, “Hold on. Type what you want, but don’t hit send. Come back to it a few minutes later, and then make sure that’s what you want to say.” And some … And in some way, it’s sort of the same, isn’t it, with a social media post? You post this, what you think is funny, you think it’s great.

Don’t hit that post button so fast, right? You want to hang on a second and say to myself, “This isn’t necessarily how my friends are going to interpret it. It’s how somebody else might interpret it,” right?

Chris Castellano: Aabsolutely, right? I mean, as a young lawyer, we all learned, I learned, that every single word you write will be read by a judge.

You have to assume that every single word you write, every email, every letter, [00:13:00] and certainly every document you file in court, right? If every single word that you write could be read by a judge, well, you as a client, you better believe that every word you write in the context of a custody dispute is open to being read by a judge, and that goes the same for every word you speak in a recorded format.

If you are present publishing it, whether email and writing or, or on an Instagram Reel, yeah, you better believe that it is out there and available for the judge.

David Bulitt: Tell folks who are listening, if you can, what are the most dangerous, most inappropriate, those posts that you just should not hit that post button when you are on the precipice or in the midst of some sort of custody dispute or litigation?

Chris Castellano: Yeah, so we touched on this a little bit at the top, but … And it depends on how, what your level of humor is, but on a joking type of post, the [00:14:00] more sarcastic, the drier the humor, whatever it may be, you ought to be careful with that, right? Because not everybody shares that level of sarcasm. But from a base level that we can all understand, posts that vent your anger, that talk about discipline and disciplining your children, you know, opinions about it, whatever it may be.

Posts about your own mental health, about your substance abuse or substance abuse history, or certainly your ability to handle the kids, right? Or frustration with handling the kids. All of those, you know, there may be extremely legitimate reasons to talk about these issues for a person. It may allow them to cope with these issues.

There are very valid reasons to have these thoughts and write some of these words out. But the question is, and we as family law litigators, you know, I tell people all the time, “Listen, in my perfect world, [00:15:00] in my selfish world as your counsel, what would I like your evidence to look like? Well, it doesn’t include X, Y, and Z,” right?

So, in my selfish world where I’m talking to our audience, if I had the ability to clean slate it and make sure that you don’t post X, Y, and Z, it’s going to be posts like this that are anger fueled, talking about mental health or, or your inability to care for the kids.

David Bulitt: How about posts about the other parent? Or sometimes you see posts about what’s going on in the midst of your litigation.

Chris Castellano: You should, as a rule of thumb, never post online about the litigation. I don’t care what type of contested case you’re in, whether it’s a landlord-tenant, whether it’s a mergers and acquisition, a criminal trial, or certainly in our context, a custody trial, right?

Never post anything about … I challenge you, David, to find a single lawyer out there in the world that would say anything contrary to this, right? Never post anything online about [00:16:00] litigation. That’s first and foremost. I guess it should be said based on what we’re seeing online, but never complain about a judge, right?

Never complain about the judge you’re dealing with. Don’t complain about opposing counsel that you’re dealing with. Don’t complain about the other spouse or the other parent. Certainly don’t complain about the kid. These are all things that you would think we shouldn’t have to say out loud. Evidently, in a world where rage posts get engagement, and as a result you get more views and clicks and therefore revenue, you know, this is something that we need to say.

David Bulitt: So let’s talk a little bit about from the outside looking in, and this is where what we’ve seen, and folks, if you were to look up on, you know, Instagram or Facebook or X, the Lindsay Clancy trial, you will see thousands, tens of thousands, maybe hundreds of thousands of comments, from people about either her, in some fashion generally about her, about her [00:17:00] kids, about the family life that she had.

How can those types of posts be dangerous? In other words, it’s not … I’m not commenting on my life. I’m not commenting on, you know, what’s going on in my case, but those kids must have really driven her crazy for her to do that. Those kids must have been really difficult, or alternatively, she deserves to burn.

Anybody like that should be … You know, those types of … You … I think you call them rage post or anger, inflammatory-type comments from the outside looking in. How, if at all, can those affect my case?

Chris Castellano: Well, that’s right. Again, it should be said that what we’re not suggesting is that people aren’t allowed to have an opinion.

Everyone’s allowed to have an opinion. The basis of this country is having an opinion and being able to speak that, and the more unpopular the opinion, the, generally speaking, the law should protect more, right? So we’ll set that part aside, but what we’re talking about is the consequences of [00:18:00] those opinions and voicing those opinions, right?

And especially when you have these inflammatory circumstances like the Lindsay Clancy trial that seem to have very different camps of support, you know, you do have a situation where you’re going to get more posts that are trending towards the extremes. And when you have those extreme posts, they become available in the context of a contested custody case, just like you said, right?

So, if you’ve got … You may have even seen it, but there is a number of posts popping up with parents chucking water at their kid. You saw those, right? Something like that, if you’re separated and you see your spouse throwing water at your infant child, that’s going to make you say, “You know, I’m going to bring this to the court’s attention.

This is abusive behavior,” right? And it may not be or it may be, but this is something that you’re creating an issue solely because of content that you created to [00:19:00] get engagement, right? And that’s what you want to avoid. I saw a video that said one person was walking by a wood chipper, right? And, you know, had these, “Just like Lindsay, I have these intrusive thoughts,” or something to that effect, right?

We can’t be normalizing this type of behavior and again, within that context that people are posting this stuff so they can get engagement. I’m not going to ignore that. But you put this out there, it’s going to be available to an opposing counsel, right? As long as that opposing counsel’s paying attention, doing their job, you better believe that that’s going to be Exhibit A, and you’re going to bring that in and say, “Your Honor, you’ve got to be concerned about this.”

David Bulitt: And people will say, and I actually was involved in a case recently where the other side said, “Well, you know, it was just a trending video. She was just doing something trending on Instagram because, you know, she’s trying to build followers,” whatever the … But it was inappropriate when you [00:20:00] looked at it by itself.

And my reaction, of course, was, “I don’t care what it’s trending. What it’s telling me is that there’s a societal problem when you are doing things to your children that you ought not be doing, even if you think it’s funny.” And so people lose sight of common sense a lot when it comes to social media posts.

Or, you know, or like we said, when we’re talking about what’s going on in a case that’s highly publicized, like the Clancy trial.

Chris Castellano: Well, that’s right. And, and what you don’t want to do is glorify what is generally or should be generally viewed as kind of unacceptable behavior, whether that’s violence, whether that’s, you know, abuse of kids.

And I’ll go the other direction, too. That’s minimizing mental health issues or substance abuse issues or whatever it may be. The best course of action, have an opinion, but generally speaking, keep your opinions to yourself. I think that that’s advice that most of [00:21:00] the internet-consuming world can probably take.

David Bulitt: Now, I want to talk to you briefly about … We touched on this a moment ago, and but let’s talk about the credibility gap that can occur between one’s testimony and what is able to be mined on social media.

Chris Castellano: That’s right. So, this is classic. How many personal injury cases are, you know, “I have a diminished quality of life?”

Person A, why is there a picture of you skiing, right, down in, Lake Tahoe? So, this is the issue, right? If you testify that, “I never drink. I never drink,” just like you referenced, right? You’re using these absolutes. “I never, I never do X, Y, and Z.” Okay. Well, Your Honor, Exhibit A. Here she is out there at the club drinking, or here he is on the back porch with a handle of vodka or whatever it may be, right?

These are not situations that you want to walk into, right? Social media exposes you to that. Now, are we suggesting that you should destroy your [00:22:00] social media, whether you should avoid posting this so you can’t get out? That’s not what we’re talking about, right? What we’re talking about is to be smart about what can be used at trial, right?

And it’s your own statements. It’s your own statements. And if you’re saying, if you’re representing to the court a particular point of view or a particular statement about yourself and you’ve got social media examples out there that contradict that, then you have to anticipate you’re going to have a problem with that, right?

If you’re saying that, “I can’t afford to even go buy groceries,” and you posted on Instagram how you just got a brand new Louis Vuitton purse, that’s going to be problematic for you.

David Bulitt: Yeah, that certainly would be problematic. To sort of try to wrap things up, which is difficult to do in this context because there’s so much to talk about, if you could, give the parents out there some practical rules, two, three, four, five real rules that [00:23:00] should always be followed when they’re looking at engaging online in social media.

Chris Castellano: So, don’t litigate your case on the internet. Don’t do it. Don’t attack the other parent. As you referenced earlier, don’t post when you’re angry, when you’re upset, when you’re having trouble, a, a dark moment, whatever it may be. And be cautious about what you’re posting online. If it’s a joke, if it’s sarcasm, especially if the context of your joke or sarcasm is violence, drugs, alcohol, anger at your kids or whatever it may be, right?

And then one of the big takeaways, and I said it a couple times throughout this podcast, is how comfortable am I explaining this to a judge? Right? That should be your takeaway. If you post this, if you go on your phone and you’re ready to post this video about you complaining, the next question should be, “If I am asked by a judge what this post meant or what I meant by it, what’s my answer going to be?”

And [00:24:00] if I don’t like the answer, don’t post it. It’s as simple as just don’t post it.

David Bulitt: Yeah, I mean, people have to understand, these things get blown up to 20 by 24 poster size things, or they’re on a big giant TV screen in the middle of a courtroom. And how’s that going to look, right? How’s it going to look?

Chris Castellano: They’re inflammatory in size, demonstrative in size, and notwithstanding the fact that it’s going to be raised in your opening, it’s going to be raised in your closing, it’s going to be an hour’s worth of time during direct testimony of going back and forth or arguing. It’s going to potentially be a source of aggravation or combativeness between you and the judge.

How many times have you seen that, where the judge tells you to just stop and he’s talking to your client directly, right? I mean, these are the risks that you take on when you start interacting in that way, and you know, it’s the most preventable outcome that you can come up with. Just don’t post it.

David Bulitt: And [00:25:00] oftentimes, like you said, it’s not even, it’s not necessarily the content so much as it establishes a significant credibility gap when people want to, as we talked about, want to portray themselves in a certain fashion, but this evidence seems to show something different. All right, Chris. I mean, you know, again, we could go on and on.

I know, I think they’re having, as we speak today, they’re doing closing arguments in that case. But folks, pay attention to it, take a look at the evidence that was put forward in that case, which is, in my view, particularly damaging for the defendant, Ms. Clancy. But in the context of this discussion, in the context of your life going forward, if in fact you are nearing or looking at the possibility of a custody dispute with the other parent.

Chris, as always, it’s been a pleasure. If folks want to get a hold of you, let’s tell them again how to do that.

Chris Castellano: Yeah. Find me on our jglaw.com website. Give me a call at 240-399-7881. Call me directly, and I’d be happy to talk about [00:26:00] this or any other issue you have.

David Bulitt: Excellent. Well, as always, like I said, it’s been a pleasure.

I love doing this show. I love talking about things that are in the news. And, Chris, thanks for bringing this up today. Folks, I hope you enjoyed this, I hope you’ll listen, tell your friends about it, and I hope you join us next time on JGL Law For You.

David Bulitt: [00:00:00] Welcome to JGL Law for You. JGL Law for You is a podcast by lawyers but not for lawyers only. On JGL Law for You, we will be discussing a wide array of topics to help you navigate the many legal process, developments in the law, other current events, and how they may affect you, your family, or your business.

David Bulitt: Welcome back to JGL Law for You, and I’m back with my good friend, my law partner, Chris Castellano, who focuses his practice on all areas of family law and knows exactly what he’s doing, knows exactly what he’s talking about, and this morning just left the courthouse. So, we’re glad to have you back, Chris.

Thanks for joining us.

Chris Castellano: Thank you as always for having me, dude.

David Bulitt: So, Chris, this is the time of year; it’s wedding season, both in June and then we see it again in fall. And what happens before wedding season? People want to talk about prenuptial agreements, right?

Chris Castellano: Oh, absolutely.

David Bulitt: So, we’re not going to talk in detail about prenuptial agreements.

I do want to talk to you about something that has grown in terms of what lawyers consider [00:01:00] ought to be included in a prenup and what clients ought to consider ought to be included in a prenup, and that’s what we call these sort of leaving the workforce or career sacrifice triggers, provisions in an agreement that talk about what would happen if one of the spouses down the road stops working, right?

Chris Castellano: Yeah, that’s absolutely right. You know, a lot of couples when they get together and they envision what their life is going to look like as a married couple, and of course, that usually involves children in that picture. And then that next natural question is, okay, well, who’s going to stay home and watch the kids, right?

And it has become more and more prevalent to ask that question before the marriage to try to plan out kind of what they’re going to do, what that scenario is going to look like. Because if one parent is going to put their career on hold and leave the workforce, what does that look like for the family, but also what does that look like [00:02:00] in the event of a breakdown of that marriage?

So that’s what we’re looking at today.

David Bulitt: I mean, people go into marriages thinking they may have children, go into marriages thinking that for one reason or another, one parent may decide to stay home completely or cut back on their work schedule or change what their career path might be.

Chris Castellano: Oh, absolutely, and there’s a myriad of different reasons for that, right?

One spouse gets a job that would take them to different areas, and so they could relocate. There’s a desire for different types of living circumstances. There are all different sorts of scenarios that could play out, and so I think that what is becoming more prevalent and, if you will, not to overuse the word, but trending in this world is to look at what type of measures we can put in place from a legal standpoint to help these people navigate that.

Let’s say a client comes to me and they say, “Okay, I want to get married. I want to do a prenup.” I think that that’s a good idea. I think that’s a smart [00:03:00] idea. And yeah, my job is solid, but I know my spouse-to-be’s job has the potential to take us elsewhere, to take us out west or down south.

And us being located in the Atlantic, all those references make sense to us, right? But to move elsewhere in the country. And so, then you have to look at, I sit down and say, “Listen, there’s consequences in the event that you make that decision to leave the workforce. What’s that going to look like? There are consequences, real consequences that we can look to limit.”

That includes your loss of income, retirement benefit entitlements, and the contributions that you’re making, and therefore the compound market gains on that retirement. Reduced Social Security earnings. And from your career perspective, right, you’re losing out on promotions, other professional advancement, earning capacity, and your overall financial [00:04:00] independence, right?

And so, some of those are those costs, and you and I have talked about costs of different things before, and this is yet another one, right, of if you leave the workforce, that’s essentially a hidden cost of that decision.

David Bulitt: And also, the fact that people have children, the needs of the family change, right?

And if in fact they end up in two separate households, the change of those needs gets multiplied.

Chris Castellano: Oh, absolutely. I mean, having a child exacerbates all of these issues or realities, and the more children you have, the more exponentially that increases, right?

David Bulitt: I think back, Chris, when I first started doing this work in prenuptial agreements, you started seeing more of them, and that goes back several years.

I won’t count. I don’t want to put my age in here. But in those days it was a discussion about, okay, are we going to agree to waive alimony? It’s either a black-or-white sort of decision. This is a nuance that is, particularly as families have become [00:05:00] more two-wage-earner based, really important for people to consider.

So, tell me a little bit about income, how the party’s income changes might affect what you advise your client. Let’s talk about the economic costs, the potential economic costs or losses that a spouse may see if he or she is the one who’s not going to be working.

Chris Castellano: Well, that’s right.

For the spouse that is leaving the workforce, we’ll call it, right? Because of all the different reasons we’ve previewed, for whatever those reasons are, they are taking that hit, as I referenced, right? The hit on future earning capacity, retirement, overall financial independence.

And so, when that potentiality is hanging out there, and they come to us looking for a prenup, as you said, right, the focus on prenups used to be something somewhat different, right? Limiting alimony or, hey, one spouse has a business that’s worth who knows how much money, and so we just want to limit that one particular [00:06:00] issue.

But the focus on prenups has changed. It’s expanded, and one of those realities is, listen, I don’t want to go into a marriage where the very foreseeable reality is that I’m going to be leaving the workforce to care for the kids, to accommodate a job move, to do this, to do that, etc., so I want that security.

So, what this looks like is really locking down security. Just like it used to be, where it’s locking down a waiver of alimony or locking down a waiver of a business interest or whatever it may have been. Now it’s the same concept.

It is locking down certainty in a concept, and that concept here is financial security for the person that’s giving up their financial independence.

David Bulitt: And people have to keep in mind, we’re getting ready to get married. I’ve got a law degree, but I’m going to stay home and take care of our children. But I’ve got a law degree, so I can always get another job.

But the reality is very different from that. Isn’t that right?

Chris Castellano: Well, yeah, because the person that continues to work, right, they’re still going in for meetings.

They’re interacting with partners or managers or what have you, supervisors. And so, their chance for promotions, their chance for bonuses, their chance for continuing education, advancements, and gaining just basic experience and increasing their Rolodex of contacts, going to various different company events to rub shoulders with people, all of that means something in the workforce.

And when you are at home, you don’t have those opportunities, right? You’re not involved in that world, and so your options become limited, which means that inherently the earning capacity is limited.

David Bulitt: And the environment changes, right? I mean, just think about what’s going on now. So, if I was a lawyer back in the 1980s or 1990s, for example, and I’m used to doing research by going online, shepherding through the old books.

Sorry if anybody doesn’t know what [00:08:00] that is but looking at old law books to try to find out what cases might support a position, sitting in the library and doing that. Now I want to get back in the workplace 30 or 40 years later, whatever it may be. There are no law libraries anymore, right? Everything is now done a different way, and I’m not used to that.

So, I might not be as employable as I think I am when I’m embarking on this marriage.

Chris Castellano: No, absolutely. And so, when you have somebody that has stepped back from the workforce that is less ingratiated with the current working climate, then what you’re really looking for is to build in that protection for the individual, right?

Build in that protection that says, “You know what? There’s a safety net here.” And yes, you know, we can look to, well, hey, isn’t that what alimony is designed for? That’s the whole point of alimony, right?

David Bulitt: Isn’t that what it is?

Chris Castellano: Except here’s a problem with that, right? Is that when, just like when we did an alimony waiver, just like when we did a business waiver, why do you do those?

You do those in a prenup [00:09:00] because in the event, and we hope the unlikely event, but in the event that the marriage falls apart, then if you didn’t have those waivers with a prenup, then you’re going through the rigmarole of a contested case, contested litigation, and you’re having to rip each other to shreds and pay tens of thousands of dollars to either achieve a number of alimony or an interest in the business or defeat those claims for it, right?

So, the same concept applies, right? You’ve got a person that has a foreseeable potentiality in however many years, and what you’re trying to do is avoid the back-end guarantee that you’re going to be spending $50,000 just to ensure that you get some type of financial security.

David Bulitt: Let’s now talk about the practical way of handling this.

You know, what is it? What’s a career sacrifice trigger? What is that in terms of a provision that you would want to put in a prenuptial agreement?

Chris Castellano: Yeah, so a career sacrifice [00:10:00] trigger is essentially a clause in your prenuptial agreement that identifies specific rights, entitlements, and requirements of both spouses and outlines obligations as long as particular objectives or specific terms are met, right?

And so, let’s first look at what the triggering events could be, right? The career sacrifice triggers. It could be, as we referenced, the birth or adoption, certainly, of a child to the marriage, right? It could be leaving full-time employment for the care of that child, reduction of hours to care for the child.

Doesn’t have to necessarily be leaving the workforce, but leaving the workforce in the same capacity could also qualify, right? And as I say these different options, I want the listeners to know that this is not a one-size-fits-all or mandatory, right? You can mix and match. The wonderful thing about prenups, David, and I’m sure that you have this experience with your clients as well as I do, is that prenups offer the ability to be very creative with your clients’ very specific circumstances, right?

As long as it’s within the boundaries of the law, yes, but you’re allowed to be very creative. And so, you know, you look at the foreseeable triggers, as I’ve outlined, but you can also expand upon that, right?

David Bulitt: For example, like, you may have… We talked about having children, but you may have a client who says, “You know, I’m 37 or 38 years old. It’s our second marriage,” whatever the case may be.

“We’re not going to have children, so I don’t need that built in. But I do need something different because there’s a good chance we’re going to have to relocate to Billings, Montana because my husband is doing, or my husband-to-be may be getting a job to do X, Y, or Z.”

Chris Castellano: Right? And so, when you have those foreseeability issues, it becomes a little bit cleaner to envision doing one of these career sacrifice trigger [00:12:00] clauses, right? And quite frankly, recommend it because if you know an eventuality’s going to come to pass, why wouldn’t you put it in?

If you’re already inclined for a prenup, why wouldn’t you put in this type of protection, right?

So, at its core, there has to be a reason why these are becoming more popular, and it’s only logical that they’re becoming more popular because people want to ensure that there’s a level of protection, right?

And so, you know, when you look at what these different clauses could require, right? And these are ideas for when you’re drafting, certainly.

But they could look like both parties mutually are agreeing to the decision, right? So, if a client’s sitting down and saying that, “Listen, I know that I’m going to have to move with my spouse-to-be to Billings, Montana, and I’m going to have to leave my job,” well, if the other spouse is over there in the other room thinking, “Well, you’ve got a portable job.

The anticipation is that we’re moving out to the mountains, [00:13:00] but you’re going to get another job out there, right? Because you’re working for a defense contractor, they’ve got a unit down there about 35 minutes away,” right?

So, people have to be on the same page for a clause like this to work. And one of those requirements could be that, listen, there’s a mutual written understanding or acknowledgement that I’m going to leave the workforce.

And it could be for a minimum period of time. It could be that you have to be out of the workforce that is mutually understood and agreed upon for a certain amount of time, like six months, nine months, 12 months, whatever it may be.

Or it could look like that plus a reduction of hours, reduction of income. Any of these different aspects of what the career sacrifice looks like could be that which you write into the clause as a requirement slash, I guess, triggering effect.

David Bulitt: What I find really interesting about all of this, and as someone who has represented clients who come to me and say, “All right, my fiancé’s lawyers [00:14:00] prepared this prenuptial agreement.

I want you to take a look at it and let me know what you think,” right? And oftentimes, I know, Chris, you probably see the same thing: they’re sort of vanilla, “I keep what I have, you keep what you have. You know, if I get an inheritance, it’s mine. If I get a gift, it’s mine. You know, if there’s growth of my asset, it’s mine. You keep this,” and that’s it.

And people, potential clients, don’t know what questions to ask, and many clients wouldn’t know to ask this question. That’s what makes you, I think, very unique in our field, which is that these are questions you’re going to ask your client whether they know whether to ask them or not.

And what I have found, and I think you have, too, is that people don’t really know or think about these types of things. So, isn’t it, really it’s a requirement for you, the lawyer representing a client in this prenup, to at least have this discussion?

Chris Castellano: Oh, without a doubt. I think, you know, it’s no different in my view when I’m drafting a marital separation agreement, absent the existence of a prenup.

Just like when you’re drafting one of those, or you’re drafting a custody agreement, there are the bucket of foreseeable circumstances or outcomes and the bucket of unforeseeable. As lawyers, we can never draft clauses that deal with the unforeseeable consequences. Why? Because, well, they’re unforeseeable.

That’s the whole… That’s why the word exists, right?

But it is our job to draft clauses that deal with the foreseeabilities, right? And so, when I have a client come to me that wants to do a prenup, you know, there’s a lot of preconceived notions around prenups. I think media does a good job of driving a lot of those preconceived notions, and frankly, I think that AI is picking up the mantle of doing that.

But it’s our job to tell them, you know, you ask those questions. Oh, what are your circumstances? What’s your job looking like? What do you think your job’s going to be in five years? You know, are you going to have kids?

All of these are natural questions. Why? Because all of them have implications for the clauses that you’re going to draft in the prenup. And frankly, [00:16:00] anyone that’s not asking those questions or engaged in those conversations is doing the client a disservice because you’re not drafting an agreement to divide people and let them go their separate ways.

You’re drafting an agreement to ensure that a partnership that should last 70 years or so, ideally, right, can survive. I don’t draft agreements for when people divorce. I draft agreements to have them be secure in the marriage that they’re entering into. It’s a paradigm change.

David Bulitt: So, let’s talk about the drafting piece for a second, and it’s sort of the same question but from two different angles, and that is, what are the risks, the concerns, the potential minefields in drafting this type of provision?

And from the client’s perspective, what should they be looking for in terms of what the provision looks like?

Chris Castellano: There’s, just like any contractual claim or clause that you’re drafting, you know, the lawyer has to be careful [00:17:00] about this, right?

We all know in Maryland you can’t have agreements to agree. You can’t make unenforceable clauses. You have to watch out for unconscionability-type clauses. And that’s, listen, almost every one of those points could be a full podcast discussion.

But there are big red flags that you have to stay away from, whether you’re being too specific, too vague, or you’re being too one-sided. You have to be careful.

When you draft these clauses, it’s no different than any other clause you’re drafting insofar as what you have to be careful of, and that is being clean, concise, specific, and understanding what is and what is not an enforceable claim.

David Bulitt: And as the client, as the person who’s having you draft this agreement for them, what should I be asking you and what should I be looking for in terms of this provision?

Chris Castellano: Yeah, so it boils down to [00:18:00] if you’re going to leave the workforce and you’re going to have this career sacrifice decision that you make, what do you feel would be, and that could be informed by conversations with counsel, but what do you feel would make you whole following that decision, right?

So that could take the form of, listen, my spouse, I’m leaving the workforce, so my spouse is going to contribute to a separate IRA for me, right?

Okay, it could look like that. It could look like an investment account, a brokerage account with the same concept. It could look like gaining a, I don’t want to say disproportionate, but a larger share of various different property rights, whether that is real property or the personal property existing between the parties, bank accounts, et cetera, or even just alimony, right?

The longer you’re out of the workforce and the reduction of income, you could have that correlate directly to some level of alimony protection or provision.

And so again, it comes down to this idea that you can be creative because it’s your life, it’s your circumstances, and it’s about building protection for you in those specific circumstances.

David Bulitt: So, give us a few examples of those protective type provisions that you might consider including in this section of a prenuptial agreement.

Chris Castellano: Yeah. So, one of them is very similar to the alimony protection that’s in a lot of agreements, right, in separation agreements, is life insurance. So, you build in a life insurance protection for the spouse that has given up their career because it’s not cheap, right?

And so, there’s consideration there as far as the money that the earning spouse, the financially dominant spouse, is putting into this protection, and it provides that level of security, financial security to the financially dependent spouse.

One of the other [00:20:00] protections, let’s look at what the whole point of rehabilitative alimony was from a litigation standpoint, right? That’s to provide for the circumstances of career re-entry for the spouse that was financially dependent, right?

And so that looks like over a certain period of time, I’m going to pay for trainings and re-educations and networking events, and then there’s going to be a ramp-up. So, some of those ideas are what I look for and what I will be talking to clients about as far as possible solutions to incorporate into these types of clauses.

David Bulitt: Let me finish here. So, I’m getting ready to get married, and my fiancée and I have discussed probably the necessity of having a prenuptial agreement. What are the- let’s call it a checklist- what type of things should people talk about before they sit down with you?

Chris Castellano: So, I think that there needs to be an understanding [00:21:00] of is either spouse-to-be is anticipated to leave the workforce?

That’s number one. That’s the core of this whole issue, right? And number two, is that leaving of the workforce temporary or indefinite? And those two questions and concepts will inform everything else.

And from there, you start to look at, all right, what circumstances will justify leaving the workforce? And we talked about that at the beginning of this recording, right?

And so, if that’s the case, the person’s leaving the workforce, then you have to talk about how are we managing the household income? Is there going to be equal access to financial information? And will there be maintenance of individual accounts between the parties or contributions to individual accounts?

There’s obviously a myriad of additional considerations, but I would sit down. If you’re having that coffee table conversation, that’s what we’re looking at.

David Bulitt: We could probably dig a hell of a lot deeper on this topic because it’s [00:22:00] really, really important for folks to understand these types of issues.

We don’t, unfortunately, have several hours to talk about it, but folks, you have the opportunity to reach out to Chris Castellano and have your questions answered before you sit down and sign off on a prenuptial agreement.

How would folks reach out to you, Chris?

Chris Castellano: Yeah, absolutely. Give me a call at Joseph Greenwald and Lake, 240-399-7900.

You can find us on the web, www.jgllaw.com and schedule a call to talk about the concerns because these are important.

David Bulitt: Chris, as always, just a plethora or a treasure trove of information, and I’m sure that the folks listening really appreciate it.

Folks, reach out to Chris. Contact him if you have questions.

It’s been great having you. Always great having Chris Castellano. We will hear from you and see you next time on JGL Law For You.