For Better, Worse, Or Divorce Podcast

This is the final podcast episode in our Mental Health and Addiction Series. This week Brian Walters and Jake Gilbreath talk about how alcoholism can affect divorce proceedings.

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Podcast Transcript

  • Your hosts have earned a reputation as fierce and effective advocates inside and outside of the courtroom. Both partners are experienced trial attorneys who have been board certified in family law by the Texas Board of Legal Specialization.
  • Brian Walters: All right, welcome back to For Better, Worse, or Divorce. I’m Brian Walters. I’m here with Jake Gilbreath. We will be continuing our mental health and addiction and litigation series. In this episode we’ll discuss alcoholism and how that can affect a divorce or a child custody case.
  • Brian Walters: All right, well, Jake, I mean, here we go With alcohol, right? It’s now legal. It wasn’t for a little while in this country, but it’s legal. It’s widely used, not as widely abused, but it is abused and so it raises its head in divorces, in child custody case. I guess I should say on the side, I’ve occasionally had it raise its financial head in the sense that it’s had a couple cases where the one spouse is spending so much money on alcohol that it was really affecting the budget for the parties. But generally what it relates to is children, right?
  • Brian Walters: Because if you don’t like the way your spouse drinks or your boyfriend or girlfriend or your baby mama, baby daddy, you don’t like how they’re drinking alcohol, then when you go your separate ways, you’re not to deal with it anymore, right? Unless you have children. And then it can become a problem. And that ranges anywhere from somebody who drinks a glass of wine and the other spouse doesn’t drink any alcohol and just thinks alcohol is just not never okay to the extreme where you have two completely drunk or alcoholic parents. That actually happens. To probably the most common one that we see where we have one person that’s sober and one person that’s not.
  • Brian Walters: And then there’s concerns when they split up because, let’s say the alcoholic parent was drinking, drinking, drinking and passed out at 8:30 every night after six vodka and tonics and doesn’t wake up until the next morning and they got three kids under the age of eight and the other parent’s been, “Okay, well they’re passed out. I’m going to take care of them tonight.” And then everything’s back to normal in the mornings, to some extent. But now they’re going to be split up. So the parent who’s been sober and taking care of the young kids in the middle of the night, let’s say someone like that comes to you, they’re divorcing. What are you going to probably hear and what are you going to advise them or what options are you going to give them?
  • Jake Gilbreath: So somebody comes in, and we have both sides, right? Sometimes people come in and the other spouse, the sober parent or the one that doesn’t struggle with alcohol. And then when you have somebody on the other side, you may have the parent that does struggle, or at least they’re facing the accusation. It’s like we talked about with the substance abuse podcast. It’s a range, right? And it’s really important, I think, in the initial consult on both sides to really drill down, what actually is going on. If you stop the conversation when somebody comes in and says, “My spouse is an alcoholic,” and you don’t really drill down to what that means, you’re doing a really disservice to the client because people have different definitions. It’s like you were saying, Brian, some people come and say, “My spouse has a huge problem with alcohol.”
  • Jake Gilbreath: And then you talk to them. It’s like, well, it turns out that they have one Bud Light a night with dinner and this spouse doesn’t like that. I’m not saying they should like it or not, but is that race, the definition of an alcoholic, certainly not in court. And then some people, they come in and they’re married to the alcoholic. And my experience is when you’re married to the alcoholic, sometimes you lose, I don’t say you lose touch with the reality. It’s almost, you’re so in it and life becomes so bizarre when you’re married to the alcoholic or you have a family member that’s an alcoholic, you sometimes don’t realize how bad it is. So you’ll have clients that’ll come in and say, “I have some concerns with my spouse’s alcohol consumption.” And you start talking to them, it turns out he’s on his third DWI, drinks 10 beers a night, there’s pictures of hidden alcohol and people passed out with kids around, stuff like that.
  • Jake Gilbreath: And so every single case, I mean people come to us with their definitions, but it’s important to drill down about what actually is going on. So once it becomes an issue, you see that alcohol is an issue, the big question is how do you prove it in court? Either way, right, how do you prove if it is a problem and you’re trying to say it’s a problem, and if somebody’s accusing you of it being a problem, how do you prove it’s not a problem? How do you go in there and prove the negative in court? So I guess pick one of those two, Brian, what do you in court?
  • Brian Walters: I mean, these are problems. They really are. I mean, to prove of the negative one is, to me, that’s the tricky one, right? Because the common situation that we hear is, “Well sure I drink, but so does my spouse and it’s not a big deal either way, right?” And so how do you prove that? That can be a problem. Do you have a preferred way of dealing with it?
  • Jake Gilbreath: It depends. I guess it goes back to drilling down. If I really think, and you got to know your judges, too. Some judges, they hear alcohol and they just say, “Okay, well nobody drinks. Nobody drinks while this case is pending. If I’ve got any concerns, I’m going to test you.” And you have to let the client know that, right? I understand you don’t think there’s a problem, this judge is going to say no drinking, so let’s just take it off the table and just do no drinking.
  • Jake Gilbreath: And not every single judge is like that though, right? I mean, if you’ve got the false accusation, so let’s start with that, right? Let’s say your client is being accused of drinking too much and that it’s not the case. It’s either being made up or somebody’s maybe taking advantage of it for litigation or exaggerating, is case by case, right? If I think that there’s something to it, then I may tell the client, it’s like, well why don’t we just go ahead and say, “We’re not going to drink when we have the child.” We don’t think it’s a problem, but we’re not going to drink when we have the child. If I think it’s more of a problem for the client, I may even have them voluntarily do some type of testing, just to tell the judge we don’t think it’s an issue, but it’s always been talked about in the marriage. There’s an issue in our marriage, judge, we’re going to be proactive about this.
  • Jake Gilbreath: Some situations it is so clearly made up or exaggerated, you just have somebody come in with testimony and they have some supporting witnesses that say that it’s not a problem. So that’s when you have the client that’s being accused of it.
  • Jake Gilbreath: Of course, on the other extreme, you have clients and people come to us and we want them coming to us that really do struggle with alcohol. And a lot of them come to us where they’re at that point where they’ve realized that their alcoholism is causing issues in their marriage, in their lives. I mean, it’s like my life’s become unmanageable, right? I’m powerless over alcohol and my life’s become unmanageable. And a lot of times that leads to a divorce. If your life is unmanageable, that can lead to a divorce. And so you have the client that coming in that recognizes that there’s an issue. First thing I always do is try to encourage them, right? It’s not the end of the world. It’s a disease and it’s a disease that we can address and we can address obviously in your personal life, but through the custody case and the divorce, we’re usually talking about a commitment to not drink, especially when you have your kids.
  • Jake Gilbreath: Sometimes people commit to not drink, period. And if they really are committed to moving forward, we’re talking about testing and making sure that we can prove sobriety, getting people hooked up with good sponsors and AA programs and all that stuff is, it should be a discussion that we have with all of our clients.
  • Jake Gilbreath: You have the flip side, right? You have the person coming in that they’re either they’re sober, they don’t struggle with drinking their spouse is struggling with alcohol. And so talk about proving that Brian, I guess that’s also hard, right? It’s not like a drug. It’s not like somebody does heroin just go take a hair test and oh look there’s heroin. And that’s end of the discussion on that. Alcohol, there’s not, I mean there’s tests, but there’s not really a magic test of blow into this and we can now see how much you’ve been drinking in the last six months.
  • Brian Walters: Right. I mean, any testing that exists for alcohol is really at the moment. I mean, alcohol stays in your blood for such a short period of time that it’s, it doesn’t tell you much about, other than what’s happened in the past four to six hours probably, if even that. So, that is really tricky. And so the best we can really do is a testing regime. There’s a couple different ways to do it that test you on a regular basis each day and maybe even either at a set time or at a random times. And so you never really know when it’s going to hit you.
  • Brian Walters: And so the most common one is to do it three times a day, right when you wake up in the morning, midafternoon and before you go to bed and to see if there’s any alcohol whatsoever. And there’s a way around that, right? If you know I’m going to get tested at 8:00 AM, 4:00 PM and midnight or whatever, then if you get tested at midnight, you’re not going to be tested til 8:00 in the morning, you can crack open the bottle of vodka at 12:01 and as long as it’s within reason, you can probably have a good time there for a few hours and drink a lot of water and then go to sleep.
  • Jake Gilbreath: Now usually that’s the catch, right? That’s the catch. It’s within reason. I think a lot of them, I’ve had situations on both sides, but it’s the try to beat the test, try to beat the test, try to drink in those windows. But it’s a horrible disease. And so you may tell yourself, I’m going to have three vodka tonics and then that way it’ll be out of my system by the time I test at 8:00 AM and now it’s four vodka tonics and five and I think I can have just one more. And then that 8:00 AM test, I can’t tell you in my career how many times I’ve seen positive tests at 8:00 AM blows. Not because I think people are having vodka for breakfast, although I’ve had that, too, but because they drank so much the night before, they try to get drinking in between the last test and the first test next morning that they’re still blowing 0.07s or something in the morning where they haven’t had a drop of alcohol for the last five hours.
  • Brian Walters: Right. So, I mean, the other option is the random ones and you get a text and you got to blow into it within 15 minutes. And that might be more of a deterrent because you never know when it’s going to happen. But if you really have a overwhelming urge to drink, you can probably talk yourself into it. “Oh, it’s probably not going to happen. Just got one, it’s probably not going to happen again.” There are tests of antibodies now that you can have in your blood system to see basically the antibodies that break down alcohol. And the more you drink, the more those antibodies are going to be in your system. The problem is is that doesn’t tell us what’s happened recently, right? So that will tell us your overall drinking history over let’s say the past month or so. But well, it’ll tell us whether you’ve been drinking significant amounts of alcohol or not.
  • Brian Walters: But if your argument is, I quit two weeks ago and you run that test on somebody then they’re going to still have antibodies and you really don’t know if they had a drink yesterday or they had a drink three weeks ago. So it’s better for monitoring long term, somebody who needs to stay sober for a long period of time rather than getting a snapshot of what’s actually happened. Because that’s often what we give, right? I think we mention it, right? Oh well yeah, I had a little bit of a drinking problem, she’s exaggerating it, but I’ve stopped, right? And I’m not going to drink again. And sometimes you need to, as a judge, you need to make a decision on whether that’s true or not and whether they’re capable of stopping or not.
  • Jake Gilbreath: Well, and back to proving in court, I mean it is that extreme, right? Sometimes you have cases where it’s just testimony, right? It’s one spouse coming in, it’s he said versus she said, and that’s not uncommon. And then you have the other extreme where you’ve got DWIs and DWIs with kids in the car, DWIs and you’ve got pictures of people passed out drunk or hidden alcohol or multiple relapses and rehab stays and stuff like that. It really is a case by case scenario. And I think our judges a lot, even more so than testing and that sort of thing. I think they’re really looking at behavior. I mean, I think a lot of them try really hard to try to understand the stuff. And I think they can tell a lot just by how somebody behaves.
  • Jake Gilbreath: You really can tell, at least my experience, I’m not a mental health professional, but you can tell if somebody’s committed to their sobriety. You can tell if somebody is struggling with alcohol. And the best thing is whenever you have the client that comes to you and that they have an issue and they’re working and you start seeing the difference when somebody commits to sobriety. The next time you see them, they’re looking better. The next time you’ve seen them, clearing up, losing weight, doing better, working with their sponsor. I mean, because ultimately, at the end of the day, we’re here, we serve a limited role, right? We’re helping people get through a divorce, but it’s like, I want you improving in your life. I mean, that’s the whole point. So we’re supposed to help you get through this situation and be there for you and that’s for good times and bad times.
  • Jake Gilbreath: And I’ve had people, I’ve had clients that struggled with alcoholism through their divorce and you start going to treatment and commitments to their sponsor, you talk to them a few years, they’re working their program, still talking to their sponsor. I’ve had clients that went out and worked in the addiction arena because once they got sober, and I think that’s really rewarding. That’s one of the most rewarding things that we do. And we’re there for the process of people, really turning their lives around.
  • Jake Gilbreath: And then, of course, it’s really rewarding when you represent the protective parent, right? And that you’re able to go in there and put in safeguards for the kids. And then it’s really great whenever you’re able to go in there and put in the safeguards and you see the change in the other side, right? You represent the protective parent and sometimes the court intervention is that wake up call and the other side gets sober or gets on the path of sobriety. And you really makes a difference in people’s lives and in kids’ lives, as cheesy as it sounds, right? It’s like we change people’s lives or we’re there for the change in their life and we get to be part of that. It’s really rewarding, hard cases, but it can be really rewarding.
  • Brian Walters: For sure. And I think there’s one more thing to talk about and we can wrap up, which is that we’ve talked about straight line cases, right? Somebody’s a bad alcoholic and then the other person who just gets sober and there’s a happy ending. I mean, life is a little more complicated than that for most people struggling with alcoholism. It’s, maybe they have six months of sobriety and then they have a couple drinks one night, maybe the kids aren’t there and they pop up positive on a test. What do we do?
  • Brian Walters: Well, you’re supposed to say sober, you didn’t, you didn’t tell anybody. You had to get caught with a test. If you’ve got a stair step up to normal visitation by that point, do we yank you back down to the bottom or do we just tell you to go back two steps? I mean, sometimes those are the hardest of all the cases and there’s not an easy answer. I think, like you said, it’s very specific, you got to figure out what exactly happened, what’s likely to occur again? How bad the relapse was. Was it a week long bender or was it, had a couple of beers watching a game or something like that? So, those are tricky. You got to deal with all of them. And if you’re going to try to be sober, as the experts will tell you, it’s a daily struggle. So, not easy.
  • Jake Gilbreath: Well, it’s progress, not perfection. And one of the unfortunate things about the court system is sometimes we insist on perfection. And that can be, it’s this balance, right? And those are the hard cases, too, right? You have somebody that’s rigorous honesty, you want to be open, you want to talk about what’s going on. But on the flip side you know that it could have a negative impact on your case. It’s the same thing as preparing for court. It’s hard. It’s like, do I go in there and tell the judge, Yeah, I’m struggling with alcohol, but then I know that that’s going to impact my custody case? Or do I go in there and try to minimize it, but then the judge gets the sense that I’m minimizing it, then that’s obviously not bad as well.
  • Jake Gilbreath: I mean, it’s a little crass, I don’t know if it’s a crass way of describing it, but I’ll say it. I tell clients this all the time, and I say it as a frustration with the legal system. It’s like I tell people, you get somebody up there on the witness stand and they testify about their alcohol use and they say, Well, I don’t think I have a problem with alcohol and everybody goes, this person’s in denial, right? So they’re hopeless, they’re in denial. But then if you get up there and you go, Eh, I’m really struggling with alcohol and I’m working on it, everybody goes, Oh my God, it’s so bad. Even she admits it, right? And it’s a hard balancing act of like, we’re not in a divorce, not a custody situation. You work the problem probably differently than if you’re in a custody situation. I think that’s for our clients that have addiction issues and they’re struggling.
  • Jake Gilbreath: I think it’s almost a harder road for them because you’re doing it with the court system, looking over you. You’ve got a nervous parent on the other side, which is understandable, but looking for mistakes. And I think it just makes recovery that much harder. But again, I see people do it, right? And it’s great to be there for them. And when there is a relapse or there’s a issue that comes up, we’re there for the clients, too. I mean, we’re here, not those lawyers that, “Oh, you messed up. See you later. We don’t want to be here anymore.” We’re here for the good and bad and see it all the way through.
  • Brian Walters: I agree with that. It’s certainly an important topic and a really common one, for better or worse.
  • Brian Walters: All right, that’s all we have for today. If you like what you’ve heard, please do us a favor and leave us a review. We appreciate all your feedback. It helps us make this a better podcast. This concludes our mental health and addiction series, and if you have any questions, feel free to reach out to us however you like, including by email at I’m Brian Walters, and this is Jake Gilbreath. Thanks again for listening.
  • For information about the topics covered in today’s episode and more, you can visit our website at Thanks for tuning in to today’s episode of For Better, Worse, or Divorce, where we post new episodes every first and third Wednesday. Do you have a topic you want discussed or a questioned for our hosts? Email us at Thanks for listening. Until next time.