The couple filed dueling petitions for divorce this week: Berry submitted hers under the alias “Hal Maria” on Monday and Martinez filed his own on Tuesday. On Wednesday, PEOPLE confirms, Berry submitted a second petition – identical to the first but without the use of pseudonyms. Filing separate petitions could be a play to gain an upper hand if the case moves to court, a legal expert says.
“For tactical reasons, some attorneys want to file first because if you re the petitioner and the case proceeds to trial, you get to put on the case first,” Robert Brandt, a family law specialist in California, tells PEOPLE. “It gives you that advantage.”
A source close to Berry says she had other motivations. “She filed first, but she didn’t draw attention to it,” the source says. “Halle filed under fake names to protect both them and their kids.”
Filing under an alias “is kind of a grey area because you’re supposed to use your real name,” adds Brandt, who is not representing either party. “But as long as she’s not using the fake name to commit fraud, she can probably get away with it.” And with Berry’s new petition, the case is back under both Berry and Martinez’s real names, though it’s unclear yet which of them will be ruled to be the petitioner.
Both parties filed for joint custody in their petitions. “She wants to share custody and she is being so amicable,” the source close to Berry says. But there are already signs that drama could flare up in the divorce: A source close to the couple told PEOPLE that Martinez had an explosive temper that frightened Berry, though the source says he was never physically abusive to her or their 2-year-old son Maceo. If Berry and Martinez can’t agree on custody, Martinez’s violent episodes – including a 2012 brawl with Gabriel Aubrey, the father of Berry’s daughter Nahla – could be used against him, Brandt says: “In terms of child custody, absolutely.”
He continues, “She can use that as grounds to claim he has a propensity for violence, but she really has to prove the violence directly affects the child.” However, if Martinez can prove that “he s been a good dad and he s been involved,” Brandt says his alleged temper “ultimately might not be that relevant.”
Martinez’s ties to his native France could also become a point of contention in the divorce. As previously reported, one of couple’s marital difficulties was his preference to live in Europe. In Berry’s petition, she even specifically asks that Martinez get permission before taking their son out of California.
But according to Brandt, neither parent can take Maceo out of the state without special permission during the divorce proceedings. “There are certain automatic restraining orders that occur the minute you file,” he explains. “If the child is in California with one of the parents, there is a specific restraint that the child cannot be removed from California without the written consent of the other party or a ruling by the court.”
Moving forward, Berry and Martinez will have to determine who will have temporary custody of Maceo during the divorce. Lawyers for both parties will then spend time sorting out their individual estates with regards to their prenuptial agreement, which Berry states in her divorce petition allows her to keep all of her earnings and assets. “The prenup might have stipulations regarding spousal support, but I don t think either one of them are financially desperate,” Brandt says, adding that spousal support could be waived altogether.
Child support, on the other hand, cannot be waived, according to the lawyer, who says payments will be determined based on who makes more money. “If one party is earning significantly more income, they still might have to pay child support, even if that party has the child over half of the time.”
Regardless of either party’s amicable intentions, “there s a lot to sort out,” Brandt says.