For Better, Worse, Or Divorce Podcast

For the first episode of our “Hollywood & Family Law“ series, Managing Partners Brian Walters and Jake Gilbreath meet with Marketing Director Katy Justice to discuss some of the legal intricacies behind Kevin Costner and Christine Baumgartner’s high-profile divorce.

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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.

Jake Gilbreath: Thanks for tuning into For Better, Worse, or Divorce podcast. This is where we provide you tips and insight on how to navigate divorce and child custody situations in the state of Texas. I’m Jake Gilbreath. I’m joined by my law partner, Brian Walters and we’re also joined today by our marketing director, Katy Justice. This is our first episode in a new quarterly series where we are going to start talking about pop culture, celebrity news, and how it ties into family law. 

For this episode, we are going to break down the Kevin Costner and Christine Baumgartner divorce, which takes place in California. We’re going to obviously talk about how it would play out and give analogies that can make it a divorce in Texas, since Brian and I are Texas lawyers. We’re going to discuss our own insights and experiences in handling some of these complexities that you see in this case, and how it would relate to Texas family law.  

Katy’s here and she’s going to help us. Katy, being a lot cooler than me and Brian, she is going to help break down the background for us and then we’ll go from there. 

Katy Justice: First of all, have either of you watched the show Yellowstone?

Jake Gilbreath: Oh, man. I’m going to get in trouble because I’m going to say I’ve watched it and it just didn’t do it for me and my wife. We’ve tried a couple of times, and the creator or the producer of it, I find him a very interesting person. I’ve just never got into Yellowstone. So, I guess cue all the hateful comments on that. That’s me personally. What about you Brian?

Brian Walters: It’s a big deal in the Walters household. My wife in particular is a big fan. I think the creator is an Austin guy. He’s done a lot of stuff. It’s actually probably my second or third favorite thing that he’s done. He’s done some other stuff that I think is better. It’s also beautiful scenery, especially now that it’s actually filmed in and around Yellowstone where it used to be filmed in Utah mainly. It’s light entertainment and I can’t take it too seriously.

Katy Justice: I was a big fan.

Jake Gilbreath: Well, I’ll try again. Whenever Sarah and I do watch TV series, we’ll watch one or two episodes and if we’re not immediately into it, we panic. We are afraid that we’re going to not enjoy it and we’re going to have wasted our time. So we stop and do something else, but we’ll try again. 

Katy Justice: I got the information on the Costner-Baumgartner divorce through The Cut, Us Weekly, AP News, and People, so I’ll be quoting them. Basically the backstory of their marriage: They were married for 19 years. They met at the golf course in the nineties while filming Tin Cup. The two started dating after Costner’s first divorce was finalized, with whom he has three kids. Kevin and Christine went on to share three children together. She filed for divorce in May, citing irreconcilable differences. The divorce was finalized in September, and they ended up avoiding the trial that was scheduled for December.

I thought some of the details of the divorce would be interesting because a lot of it comes up in PNC calls and I think in some of our cases. I thought it’d be interesting to kind of detail some of the stuff and then get your insight from a lawyer’s perspective.

First point on some of their money woes. Costner claimed Christine withdrew $95,000 from a shared bank account and credit cards to pay divorce attorneys and forensic accountants. Costner stated he was forced to then limit her credit card to $30,000 a month. So, I wanted to hear a little bit about how it works when one spouse needs to use the shared bank accounts for attorney’s fees. It comes up a lot. People are worried that someone’s going to see it, they’re going to flag the charge, or kind of how that works when all of the accounts are shared. 

Brian Walters: The big deal in this one is they seem to have had a very thorough, very airtight prenup. Call it what you want to, but it’s a contract between two adults. I guess you’d say it seemed to be very favorable to him in hindsight. Frankly those numbers are the same thing I hear in upper middle class or lower upper class people. That’s the same kind of numbers and the same issues that we deal with all the time. 

I get that call all the time, and this is Kevin Costner. We’ll get to some of the other numbers in a minute, but it’s interesting. He was running a pretty tight ship in the Costner household, financially, based on what you would expect from a major Hollywood star. Those are surprising numbers to me. Surprisingly, he must have had a provision that says she can’t pay her lawyers out of the community fund or whatever this account is. That’s what all of that sounds like to me. I don’t think anybody has actually read the pre-nup because it’s not public. Jake, what are your thoughts about that? 

Jake Gilbreath: I don’t know the details or why he was upset. Tying it to what we see as lawyers. I was having this conversation yesterday in a consult where the other side was asking for what we call interim attorneys fees in Texas. It is where we need the judge to make orders that say, “My spouse pays for divorce attorneys and forensic accountant.” The person I was talking to it was his first divorce, and he had come in with natural questions like, “Why would I pay for her divorce lawyers?” Actually, the situation I was talking to the client about yesterday was, “Well, you are not paying for it. It may be physically coming from your checking account, depending on how finances are, but you both are paying for it. It’s the community estate paying for it.” In this particular situation it’s just how they did their finances. There wasn’t anything wrong with it, but he just so happened to have the savings in his name and stuff. But it’s community property, and lawyers are going to get paid from that. A lot of times Katy is having conversations with people and they ask “How am I going to pay for lawyers?” Well, to the extent that there is community funds available. It may be where a judge is telling the other side to pay for the retainer, or pay for the lawyer moving forward. It may be that for the time being you’re borrowing from family or putting it on credit cards. We’ve talked about this in other episodes, but that being a community obligation. 

That’s what kind of stood out to me, but Brian’s right. Maybe it was a bigger issue in this case because there’s a prenup. A lot of times you’ll see prenups say that there’s no interim attorney’s fees, fees that will be ordered or agreed to in a divorce. You’ll see that in a prenup. There’s also children involved and ultimately you cannot put that in a prenup for the safety of the children, or you can’t ask for attorney’s fees. So who knows what it was, but it is certainly a common issue. Like I said, the case I had yesterday, it was a younger couple going through divorce. It happens all the way down to or up to, however you want to look at it, your celebrity divorces. 

Katy Justice: The next point was regarding their home. Costner alleged that Baumgartner was refusing to leave their shared home, which by the way is worth $145 million, despite the prenup stating that she had 30 days to vacate the property following their split. According to Costner, Baumgartner was using the situation to make him comply with her financial demands, but Baumgartner claimed that she had no personal income to be able to vacate her and her children out of the home. Ultimately the judge denied her request. I wanted to get your thoughts a little bit on what’s enforceable. What is able to be modified in prenuptial agreements in situations like this, and maybe walk us through why the judge denied that. 

Jake Gilbreath: Ultimately the premarital agreement, let’s say if this was in Texas, if it’s enforceable, the family code sets forth some provisions that would make it enforceable. If it’s enforceable, then ultimately it is a contract. Like Brian was saying, it would need to be enforced at the end of the day. Now if it was in Texas, the judge would have the ability to say, “You get to stay in the $145 million house,” which I probably wouldn’t want to vacate either. But the judge would have the ability to say, to make orders for temporary support, either be child support if there’s kids, or spousal support. I don’t know what the premarital agreement said about interim or temporary spousal support, but you can always have a prenup and can’t limit child support. If there’s children involved, the court could just make orders for payment of bills and expenses and what have you.

Particularly while a case is pending, no judge is going to ultimately want to kick somebody with their children out on the street. But on the flip side, that doesn’t mean you get to stay in a $145 million house, particularly if the premarital agreement requires you to vacate. That’s a long way of saying generally, they’re enforceable. When we either draft prenups or review prenups, people need to understand, assuming it checks the appropriate boxes, it’s going to be enforceable. Sometimes that can be harsh and a judge is going to have limited things that she or he can do if there’s an enforceable prenup in place. 

Brian Walters: Yeah, I agree. And this is also instructive of a big difference between Texas and as far as I can tell, the other forty-nine states, including California. Every other state that I’m aware of, and I know California does, has legal separation. So what that means is that let’s just say somebody files for divorce, it’s a little more complicated than that. As soon as that happens, your finances are forever separate from each other. Now, that doesn’t mean you don’t have obligations with child support or alimony, but that’s a big difference with Texas. One of the most confusing, and I think frankly problematic things we have in our system is that even though you’ve separated, maybe living in different households, and there’s a divorce going on. In Texas, your finances are still intertwined with each other. The income that’s coming in is still joint income. The expenses that are going out are still joint expenses.

Obviously you have some requirements to act reasonably and not waste money and those types of things. I think that’s what’s going on here in the Costner matter, is that somebody’s filed for divorce and therefore they have no obligation toward each other, period. So she’s saying, “Look, I can’t afford to move out because I don’t have any money. I didn’t earn any and I don’t have any rights to it evidently under the prenup, and so I have to stay here. Otherwise, me and my kids are going to be homeless.” I doubt that would really happen, and I’m not sure she was not even quite that dramatic about it. 

The judge really doesn’t have a choice. As soon as we figure out the prenup is valid, then the judge has to follow it. It’s a contract. My guess is that there’s probably some provision in there as well that says, “If you challenge this prenup and you lose,” to her, “A lot of bad things are going to happen to you.” Or there’ll be a financial penalty. Or maybe there’s a $5 million payout, but you lose it if you challenge the prenup.

And so that’s probably what’s going on here. That’s my guess about the dynamics of it. It’s similar to some provisions in wills, it’s called an ad terrorem clause. It says that if you challenge the will, you could be disinherited or something like that. Similar concept. 

Jake Gilbreath: Yeah, I see that a lot in either litigating over prenups or people coming in for a divorce and they have them. Or if we’re drafting them or reviewing them. I always refer to the poison pill. It says, “If you challenge it, you could pay attorney’s fees, you could lose out on financial benefits,” or what have you. Obviously trying to disincentivize people to fight about it, if you’re the one asking for the prenup or seeking to be enforced. That’s a good point too, Brian, about that is a constant conversation we’re having with people. In Texas, and I think you’re right, my understanding is that it is fairly unique. Until you’re divorced, either you go to mediation and you sign a mediated settlement agreement or a judge says “You’re divorced,” you’re still married. Your finances are just as if you had never separated. There’s sometimes a motivation if you’re the non-income earning spouse to drag out a divorce.

If my spouse is making $2 million a year and I have no income, and let’s assume hopefully we’re not burning through all that $2 million through our spending. Then I’m motivated to kind of drag my feet a little bit on the divorce. We get that on both ends. Sometimes you have clients that come in and their law firm or the lawyers working for them are just not moving at the speed that they want. I know Katy gets lots of those calls that say, “I’ve filed and a year later I’m still married, and I can’t get anybody to respond to me. I can’t get anybody to move this case forward. I understand it’s a long process as is, but this is getting a little ridiculous.” Particularly because it’s kind of hard to go to work every single day when you’re going through a divorce, knowing that at least 50% of your paycheck is not yours. It kind of decreases motivation sometimes. So we get those calls, and probably some of those dynamics playing out here too.

Katy Justice: Next point is regarding child support. Baumgartner asked for $248,000 a month in child support, claiming Costner was making $1.5 million a month from Yellowstone. Costner came back and said he was making less in 2023 due to no longer being under contract with the show. Baumgartner’s lawyers cited the family code that Kevin Costner should pay sufficient child support so that children can continue to have comparable lives when they’re with their father and their mother. Basically vacations, private aircraft, and things like that. I wanted to hear a little bit about how child support is calculated in Texas and also a little bit more about that comparable lifestyle situation. If you guys have dealt with that.

Brian Walters: $1.5 million a month in California after state income taxes is less, it’s about $700,000 because it’s over 50% marginal tax rate. So it’s actually about 30% of his net income, which is about what you’d pay, 30% for three kids, in Texas. That’s the guideline amount. With the very big difference, which is that we have a cap in Texas that generally speaking, with very few exceptions. It’s essentially capped at somebody making $150,000 a year. So you’re looking at about $2,300 or $2,500 something in that range depending on how much you end up paying out of pocket for health insurance and those types of things, for three kids. Versus literally a hundred times that if I’m doing my math right. So, because there’s no cap evidently in California and it’s not clear from that what the actual ruling was. It sounds like that’s the ask, and I’m not sure what the ruling was. Maybe they ultimately settled that part of it. I’m not exactly sure. 

Katy Justice: They did not settle for what she asked for.

Brian Walters: That’s typical litigation. Somebody asks for a big number, somebody counters at a lower number, and there’s often a settlement somewhere in between the two numbers. So that’s the cap issue, which is again, a big difference in Texas. From what I’ve seen in most states, everybody calculates a little differently in each state. For average American people, the outcome is usually the same, but fairly similar between the states. This is a classic example of Texas being very, very different from California.

Jake, I’ll let you comment on the second part of it, about the standard of how they come up with that number about this comparable lifestyle thing.

Jake Gilbreath: You’re not going to see those words in the Texas Family Code about comparable lifestyle. The Family Code’s pretty simplistic on the family and how we do child support. It says we look at monthly net resources and we apply the percentages. We hear people say, “Guideline child support,” that’s what they’re talking about. There are guidelines in the Texas Family Code. It doesn’t say anything about “We’re trying to maintain lifestyles,” it doesn’t say anything about “We’re trying to keep the two households equal in the way they raise the children.” It’s just, “Here’s the guidelines.” Like you were saying, Brian, the biggest thing being the cap, right? If that could particularly affect differences in households, so they’re comparable households. If one spouse is making a million dollars a year, but caps out around what is $9,200 a month net resources. Which you, like you were saying, Brian, people who make around $150,000 a year is when you would hit the cap. 

So I’m paying child support as if I was making $150,000 a year, but I’m actually making a million, 2 million, 3 million, 500,000, what have you. There will be a significant difference in the households. Now, there are exceptions where the court can go above guidelines, but they’re rare. There are some counties where you’ll never see a judge go above cap and in some counties you’ll see judges try to push above it when appropriate. But it’s never going to be anywhere close to what California is or some other states. It’s one of those conversations you have to have with clients. Sometimes it’s a hard conversation if you’re telling somebody who’s going to be receiving child support and you have to help them plan financially, and talk about other ways we can recover or take care of them financially through the divorce.

Unfortunately, or fortunately, it depends on how you look at it, I guess. Saying, “I didn’t write this.” I tell people all the time, “I can see the state capitol from my office window. I don’t work there, I didn’t write it.” That’s our job and a judge’s job, to work within the confines of what’s in the Texas Family Code. We got to have really frank discussions with people and what that looks like.  

The last thing I guess I’ll say on this too though, is you can always do more. The caps are what they are. Some clients want to do above guideline child support and some of them want to structure it differently. Maybe it’s not child support, but there’s some things that we agree to pay and cover. It’s all a discussion that needs to be had whenever you’re talking about child support and what the two different households look like moving forward from a divorce.

Katy Justice: I will wrap up a little bit, and this isn’t so much of a legal question, but you guys take potential new client consults so much, and this comes up just even in my intake calls. I wanted to get your thoughts. There was a point of contention a little bit in this divorce. Baumgartner alleged that Costner told the kids about the divorce on his own terms via a Zoom call, when they had requested to do it together in person. I wanted to see, do clients ever ask you any advice on talking about the subject with their children? I know we’ve had a couple episodes specifically with Amy Tyson, who’s an author and who has a book on talking to your kids about it. But I just wanted to close out and wrap it up with what your thoughts were on there, and what you tell clients. 

Jake Gilbreath: Yeah, I get asked that a lot. I know you do too, Brian. It’s not a legal question, but people are looking to us for guidance through a divorce or a custody case. I always tell people I’m not a mental health professional, but obviously I see a lot of this. Having been through a divorce and obviously dealing with my client’s divorces over the years. If there’s a mental health professional involved in the family or a counselor, a pastor, family therapist, whatever. Someone that you can reach out to and get guidance from, I always encourage people to do that because it’s a personal decision. There’s no legally correct answer of what you do and how you tell your children that you’re going through a divorce.

What I tell people though, is that you may be very anxious about the conversation, but I do try to let people know that my experience and what I hear from mental health professionals, is that being on the same page with kids and making sure that they understand that both their parents love them. I mean, no matter what’s going on with the family unit or how much you’re upset with your spouse right now or the other parent of your child, it’s never the child’s fault. And the parents still love the child very much.

I encourage them to keep that in mind, and try to keep the children away from whatever drama we adults are having. Then if there’s a mental health professional that they have involved in their lives or that they can get involved in their lives, I think that’s a good conversation to have with that individual about the actual timing and method of telling the children.

Well, that’s what we have for today. That was fun. And this is our first episode on our ongoing pop culture series, so be on the lookout for more episodes like this. If there’s a topic that you’d like to discuss, please email us at podcast@waltersgilbreath.com. We’re always looking for feedback, suggestions and follow-up questions. If you have anything you need from the firm or have additional questions or topics you want to discuss, you can also find us on our website, and you can find the firm’s contact information there. We welcome all feedback. We welcome y’all’s involvement in this podcast, and we appreciate everything we get from our listeners. So thanks for listening and we’ll see y’all next time.

For information about the topics covered in today’s episode and more, you can visit our website at waltersgilbreath.com. Thanks for tuning into 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 question for our hosts? Email us at podcast@waltersgillbreath.com. Thanks for listening. Until next time.