Season three of AMC’s landmark TV show “Breaking Bad” features a plot in which one of the show’s primary characters – Skyler White, wife and reluctant partner-in-crime to antihero meth cooker Walter White – considers whether to file for divorce from her possible sociopath husband shortly after learning that he is, in fact, a drug chef (“Not a dealer,” as Walt carefully explains to her). In two episodes, No Mas and Mas, Skyler actually visits with a divorce lawyer and, somewhat haltingly, tries to explain her predicament.
Needless to say, it’s always very nerdily exciting for a divorce lawyer to see a fictional representation of herself on such a groundbreaking show. The question for us is, how accurate a portrayal of the very opening stages of a divorce is this? How good a lawyer has Skyler found? And what would I tell Skyler if she came into my office, talking about a duffle bag full of questionably obtained money and a newborn baby?
In her first meeting with Skyler (“initial consult” in divorce lawyer parlance), the lawyer – who goes unnamed and shall henceforth be called The Lawyer – advises her not to leave the marital home, as doing so could harm her custody case. This is, notably, before Skyler start spilling the beans on all the meth business. I would express some agreement with The Lawyer’s position here. Depending on the relationship between the divorcing parties, it might be wise to try and stick it out in the marital home, or even wiser to ask your spouse to leave. Courts do not like to upset the “status quo,” particularly in regards to the routines and lifestyles of the children, so the spouse who leaves the marital residence might have some extra work to do, custody-wise.
Walt, of course, is a complete jerk about this and Skyler winds up trying to force him out by calling the police. She fails.
The bigger question for Breaking Bad fans, though, is this: The Lawyer, once she learns that Walt is a drug kingpin, ditches her old advice and tells Skyler to pick up and run, as far and as fast as she can, call the police, and forget about the money. From a human standpoint, The Lawyer’s advice is sound – she is concerned with Skyler’s life, and the lives of the children of the marriage. But what about from a lawyer’s standpoint (not to imply that lawyers aren’t human)?
In some ways, this is a divorce lawyer’s nightmare: a client who is married to a wealthy individual who has amassed his wealth through illegal means. The first thing I would do is try and assess my client’s own criminal liability. Is she an accomplice, or a victim? As BB fans know, this becomes a major topic of discussion in the show’s final season.
Just because marital money has been obtained contra the law, does not mean it is necessarily off-limits in an equitable distribution. If I felt Skyler was not herself a criminal, I might take the position that the source of the money is her husband’s problem. He got it where he got it, now he better turn over her marital share of it. For those who watched “The Sopranos” – this is essentially the tack Carmela’s divorce attorney takes in season five.
But the more immediate concern, both for Skyler and The Lawyer, is the kids, and on this, I would largely agree with The Lawyer. Staying in a house with a criminal, and not just any criminal but a true meth crime boss, could eventually hurt Skyler’s own custody case. At this point, she has to be thinking not about her battle with Walt, but about what happens if the authorities step in. Even if I would not advise her to go to the cops (and I might), I would at least tell her to get out while she still can.
There is so much more to discuss on this topic. For example, did Walt dissipate marital funds when he lit a pile of drug money on fire and throw it in the pool? But we will have to leave that for another, future post. Check back!