New York Divorce Report - New York's Divorce and Family Law Blog

It is well established in New York, that when an engagement is broken, the engagement ring must be returned to the groom.  The exception to this rule is when the man is already married, the intended bride gets to keep the ring.   

Recently, a New York court answered the question what happens to an engagement ring when it is the woman who is already married and the “engagement” is broken.

In the case Lipschutz v. Kiderman, the appellate court explained that:

 where a party gives an engagement gift to another with knowledge that an impediment to a lawful marriage exists, whether the impediment is on the part of the donor or the recipient, no action will lie to compel a return of the property on the ground that the marriage did not take place

So, if a man gives a woman a ring, knowing that she is married, and the parties fail to wed, then the woman may keep the ring.

An engagement ring is a conditional gift, made in contemplation of marriage.  If the marriage occurs, the condition has been satisfied and the gift is complete; the recipient, generally the woman, gets to keep the ring.   If the marriage does not take place, the condition has not been satisfied, and the ring need be returned. 

However, if someone is already married at the time of the engagement, they cannot legally enter into a contract to marry.   In many of the reported cases, it is the prospective groom who gives an engagement ring while married to another woman.  Whether or not the marriage takes place, his fiancé is legally entitled to keep the engagement ring. 

In the Lischutz case, it was the woman who was married at the time of the engagement.  The Court said that if the prospective groom actually knew this his fiancé was married and could not contract to marry, when he gave her the ring, she would get to keep it.   If he did not know she was married, he would be entitled to the return of the ring.

The bar against a recovery of the engagement ring “is intended to protect an innocent party, not one aware of the other’s disability to contract a marriage at the time of the engagement.” 

The Wall Street Journal in an article written by Mary Pilon detailed some of the reasons couples enter into prenuptial agreements.

In the article, I was quoted for having noticed a trend in my practice. In conversations with many of my younger clients, I observed that often they did not want a pre-nuptial agreement to protect assets they had already acquired-often they had yet to acquire anything of value, but instead, to protect their prospective inheritance. In many cases they were being dictated to by their parents and told that they had to obtain a pre-nuptial agreement.

In its most basic form, a pre-nuptial agreements identifies what is marital property, which would be subject to equitable distribution if the parties later divorce, and what is separate property, which would be immune from their spouse’s claims.

Property inherited or acquired by gift is separate property. However, money is fungible and memories of the source of the funds are conveniently fleeting.

As pointed out in the Divorce Analysis Blog:

A prenuptial agreement is useful in establishing the parties individual pre-marital wealth levels. While this may seem mundane ( I mean, who doesn’t know their net worth when they say “I do”?), you would be how surprised how time colors the memory of wealth. Like the old “fishing story” beliefs about net worth can change dramatically with time.

One of the most useful aspects of the prenuptial agreement is that it clearly defines what is separate property, where appropriate, values the separate property and delineates the circumstances where separate property can be converted to marital property.

Parents leaving sizeable estates to their children may require the children to obtain pre-nups to ensure that however their children use their estates, the funds will for all purposes remain a separate asset and otherwise immune from a spouse’s claim in the event the marriage ends in divorce.
 

In a fascinating study, divorce was found to be contagious. According to a study at the Framington Heart Study, a person whose friend or sibling gets a divorce is more likely to get divorced

As detailed in the study , the researchers found that:

Divorce is the dissolution of a social tie, but it is also possible that attitudes about divorce flow across social ties . . . We find that divorce can spread between friends, siblings, and coworkers, and there are clusters of divorcees that extend two degrees of separation in the network. We also find that popular people are less likely to get divorced, divorcees have denser social networks, and they are much more likely to remarry other divorcees.

The "contagious" nature of divorce is unlikely to be caused by shared environmental factors because friends who live far away are just as influential as those who live close by. But, having children mitigates the susceptibility to being influenced by peers who get divorced

The study concludes that attending to the health of one’s friends’ marriages serves to support and enhance the durability of one’s own relationship, and that divorce should be understood as a collective phenomenon that extends far beyond those directly affected.
 

In a highly unusual move, a judge ordered a mother jailed for interfering with husband’s visitation with his children.

In Lauren R. v Ted R. Justice Robert Ross ordered to the mother to report to jail for repeatedly violating the terms of the court orders regarding the father’s parenting time. The mother’s imprisonment coincides with the father’s scheduled visitation with the children.

The Court’s opinion details instance after instance of the mothers deliberate and willful attempts to alienate the children from the father, including false reports of child abuse, bad-mouthing the father in the presence of the children, and deliberately scheduling theater tickets, family events and social activities for the girls during the father’s visitation.

The New York Post reported that as a result of the mother’s efforts the children now hate their father. "They tell me I'm strictly their biological father," Ted Rubin, the father said, "and their stepfather is their real father."

In the past, courts have ordered a change of custody when one parent interferes with the other’s parental rights. In this case, the mother apparently succeeded in destroying the father- daughter relationship. In doing so the mother violated repeated court orders regarding visitation. The mother has to be penalized in a way that she is forced to learn that Court orders have teeth and can be enforced. Jail time for her contempt of court may be the only punishment she understands.

On the other hand, the mother’s imprisonment is not going to endear the father to his daughters. It seems inevitable that the girls will continue to blame the father for putting the mother in jail.

The reasons why marriages fail and couples divorce have been studied ad nauseum.   Apparently, everything, including your smoking habits, age and even the state in which you reside is predictive of your odds of divorce. 

Annli Rufuse on the The Daily Beast details 15 of these studies. Here are some of the more interesting ones:

• If you live in a red state, you're 27 percent more likely to get divorced than if you live in a blue state.

 In red-state couples traditionalin The Compassionate Community: Ten Values to Unite America, by Jonathan Miller and Al Goly marry younger—and the younger the partners, the riskier the marriage. According to the U.S. Census Bureau, the states with the lowest median age at marriage are Utah, Arkansas, Kentucky, and Oklahoma.

 (Source: National Vital Statistics Report, 2003; cited in The Compassionate Community: Ten Values to Unite America, by Jonathan Miller and Al Gore) 

• If your parents were divorced, you're at least 40 percent more likely to get divorced than if they weren't. If your parents married others after divorcing, you're 91 percent more likely to get divorced.

This could be because witnessing our parents' divorces reinforces our ambivalence about commitment in a "disposable society," says Divorce Magazine publisher Dan Couvrette. "In most people's minds, it's easier to get a new car than fix the one you've got."

 

(Source: Nicholas Wolfinger, Understanding the Divorce Cycle, Cambridge University Press, 2005)

• If only one partner in your marriage is a smoker, you're 75 percent to 91 percent more likely to divorce than smokers who are married to fellow smokers.

"The more similar people are in their values, backgrounds, and life goals, the more likely they are to have a successful marriage," notes Tara Parker-Pope. From age to ethnicity to unhealthy habits, dissimilarities between spouses increase divorce risks.

 

(Source: Rebecca Kippen, Bruce Chapman and Peng Yu, "What's Love Got to Do With It? Homogamy and Dyadic Approaches to Understanding Marital Instability," Melbourne Institute of Applied Economic and Social Research, 2009)

•  If you have a daughter, you're nearly 5 percent more likely to divorce than if you have a son.

This figure multiplies with the numbers of daughters or sons. "We think it happens because fathers get more invested in family life when they have boys," says Stephanie Coontz, author of Marriage, a History and director of research for the Council on Contemporary Families.

 

 

(Source: Gordon Dahl and Enrico Moretti, "The Demand for Sons," published in the Review of Economic Studies, 2005)

 

• If you're of "below average" intelligence, you're 50 percent more likely to be divorced than those of "above average" intelligence.

Presented by University of Delaware education professor Linda Gottfredson, codirector of the Delaware-Johns Hopkins Project for the Study of Intelligence and Society, this figure joins assertions in Richard Herrnstein and Charles Murray's controversial 1994 bestseller The Bell Curve that those with IQs of 100 face a 28 percent probability of divorce in the first five years of marriage, compared to just a 9 percent probability for those with IQs of 130.

 

(Source: Linda S. Gottfredson, "The General Intelligence Factor," Scientific American, Winter 1998, and Richard J. Herrnstein and Charles A. Murray, The Bell Curve: Intelligence and Class Structure in American Life, Simon & Schuster, 1994, page 176)