Good Marriage Equals Good Blood Pressure; Bad Marriage Equals High Blood Pressure

Posted by Daniel Clement on March 20, 2008
Stating the obvious (and arising to the level of  “who pays for these studies”), a study found that: “A happy marriage is good for your blood pressure, but a stressed one can be worse than being single.”

Study volunteers wore devices that recorded their blood pressure at random times over 24 hours. Married participants also filled out questionnaires about their marriage.

Analysis found that the more marital satisfaction and adjustment spouses reported, the lower their average blood pressure was over the 24 hours and during the daytime.

But spouses who scored low in marital satisfaction had higher average blood pressure than single people did. During the daytime, their average was about five points higher, entering a range that's considered a warning sign. (That result is for the top number in a blood pressure reading).

If  “marital unhappiness” raises blood pressure to borderline unhealthy levels, I don’t think we need a study to learn that the stress of divorce raises blood pressure to levels that are off the charts.

Entry of Divorce Judgment: An Occasion To Celebrate?

Posted by Daniel Clement on March 19, 2008
There is a story on CNN about  "Divorce Celebrations"

It makes perfect sense to mark the occasion of a divorce with an “event.”  Unquestionably, divorce, like marriage or death, is a life changing event. It is the legal recognition of the end of a marriage.  This major event  unceremoniously occurs with the stroke of a judge’s pen and your lawyer’s handshake as he bids you goodbye and wishes you good luck in the future.

It is natural to be depressed or even angry when marriage is terminated by divorce. Notwithstanding the fact that half of all marriages end in divorce, society still views divorce as some type of failure; litigants may cast themselves as winners or losers.

When a marriage ends because of the death of one of the parties, there is an accepted grieving process; there is a funeral, a wake, or a shiva. Why should there not be some type of social acknowledgment or ritual to mark the end of a marriage by divorce?

If just discussing divorce in public seemed taboo a few years ago, the growing trend of divorce celebrations is helping lessen the stigma surrounding the end of marriage.


"Yes, it's sad and it's painful, but it's not failure," says Christine Gallagher, the owner of Los Angeles event company The Divorce Party Planner and the author of a book by the same name. "It's part of life, and yet it's the only major event for which we have no ritual.

"A celebration communicates that divorce is OK -- life-affirming, even." . . .

 "It's like an Irish wake. Just because there's been a death doesn't mean you can't have food and drink, acknowledge the past and hope good things for the future. It's about closure."

Marital Funds Used To Pay Separate Debt Results in Claim to Recoup

Posted by Daniel Clement on March 18, 2008
The Appellate Division answered a common question- what happens when one spouse uses marital assets to pay a separate obligation.

It is quite common for the parties to enter the marriage with existing  financial obligations, whether it be student loans, credit card debt or even an obligation to pay child support  or maintenance from a prior marriage. It would be the norm to pay these financial obligations from current income. The problem is that the separate debt is being paid with marital assets, the current income.

In the fascinating case of Johnson v. Chapin, the husband used martial assets for his separate obligation to pay support to his former spouse. The Appellate Division pointed out this scenario gave  his second wife’ the right to recoup her share of the marital property used to pay the husband’s separate debt.

There is ample authority for the proposition that contribution to the separate assets and liabilities of a former spouse may be recouped in an award of equitable distribution. For example, in Lewis v Lewis (6 AD3d 837 [2004]) the Third Department upheld an equitable distribution award which allowed a plaintiff to recoup 50% of payments made during the marriage to reduce mortgage indebtedness on a residence deemed to be the defendant's separate property. Citing numerous cases, the Court emphatically reaffirmed the settled principle that:

" marital funds should not be used to pay off separate liabilities' and, whenever that occurs, the inequity may be remedied by permitting the injured spouse to recoup his or her equitable share of the marital funds so used. . .

Similarly, in Dewell v Dewell (288 AD2d 252 [2001]), the Second Department held that the plaintiff was entitled to recoup 50% of marital funds used to reduce a deb incurred to obtain a medical license which, in the circumstances of that case, was found to constitute the defendant's separate property. Applying this authority, the court properly held that plaintiff was entitled to recoup 50% of marital funds used to meet the husband's separate legal obligations to his former wife.

What this means is that husbands need inventory their wives’ separate debt and wives need inventory their husbands’ separate debt. To the extent that either’s separate debt has been reduced or eliminated during the marriage, the other may make a claim to recoup his/her equitable share.

Same Sex Marriage - A Humorous View

Posted by Daniel Clement on March 11, 2008
In the past weeks, I have commented on the two recent court decisions regarding same sex marriage and same sex divorce divorce. I just saw a funny television commercial for the Broadway show, November regarding these very issues.

In ad, the President (Nathan Lane) is asked by his aide for his view on gay marriage. He answers:

Gays should be allowed to marry, but not to divorce . . . therefore gaining new liberty and all the suffering that comes from knowing that there is no way out.

The (ad #2) can be viewed here

Divorce and Estate Planning: How To Ensure Your Estate Does Not Go to Your Estranged Spouse

Posted by Daniel Clement on March 10, 2008
Phil Bernstein, in his New York Probate Litigation Blog, highlights several issues about the impact on divorce on an estate plan. In his post, Phil reminds us of the importance of finalizing the divorce settlement as soon as practicable.

There is probably no matrimonial lawyer who has spent substantial time in practice who has not had to deal with the disaster which occurs when a client dies before the entry of a divorce decree or the execution of a stipulation of settlement or separation agreement providing for the couple disinheriting each other. When that happens, as Ms. Hamill so aptly observes, the survivor will generally inherit all the property of the marriage.

You cannot disinherit your spouse during the marriage. Each spouse has an “elective share” in the estate of the other. If you attempt to disinherit your spouse during the marriage, he/she can elect to take his/her elective share (about 1/3 of the estate if there are children of the marriage and ½ if there are no children).

Most settlement agreements contain provisions wherein each spouse waives their respective rights of election and any interest in the other’s estate. If you should die before an agreement containing these waivers is signed or before the court enters a judgment of divorce, your estranged spouse can (and probably will) exercise the right of election and inherit from you.

I had at least one case wherein a wife prolonged the divorce because her husband was ill and she was gambling that her husband would pass away before the divorce was granted and her right of election was extinguished.

The only way to ensure that your estate goes to your intended beneficiaries and not your estranged spouse is to make sure that the divorce settlement agreement is promptly signed.

Mr. Bernstein aptly suggests that you check all of the beneficiary designations of your insurance and retirement plans. If your former spouse is named as a beneficiary, he/she will be paid when you die


Educational Degrees Are Marital Assets to Be Equitably Distributed

Posted by Daniel Clement on March 06, 2008
When thinking of marital assets to be distributed during a divorce, litigants prepare for battle over homes, pensions and investment accounts. Unschooled or poorly advised litigants may overlook valuable assets.

For instance, what happens if one of the parties attends school or attains an educational degree during the marriage.

The Appellate Division re-affirmed the well settled rule of law that

an academic degree may constitute a marital asset subject to equitable distribution, even though the degree may not necessarily confer the legal right to engage in a particular profession. While the MBA degree might not actually be a prerequisite to the defendant's employment, the record demonstrates that the degree substantially increased her future earnings, and therefore the plaintiff is entitled to an equitable share of its value, with the proper valuation date being the commencement of this action.

In the recently decided case of Judge v. Judge, the wife “stopped working outside the home in order to take care of the parties' first child. She primarily stayed home and took care of the parties' children until the fall of 1993, when she enrolled in a program for a Masters of Business Administration degree (hereinafter an MBA degree) at a college where the plaintiff was employed as a professor. In the spring of 1994, the defendant was hired by the Federal Reserve Bank (hereinafter the FRB), through the college placement office, and she received her MBA degree in February 1997. The defendant's first job with the FRB was as a Management Information Analyst, and at the time of trial she was an officer at the FRB and vice-president of the FRB's Cash and Custody Division.”

The fact that the degree is an asset to be equitably distributed should not be in dispute. Generally, only the value of the degree is open for debate and is determined through the use of expert testimony. It is quite common for the court to appoint a single neutral evaluator to determine the value of a degree, license or enhanced earning capacity.

In the Judge case, based upon expert testimony at trial, the Court found that the value of MBA was $565,000 and find that the plaintiff was entitled to 25% thereof, for an award in the sum of $141,250.

Same-Sex Marriage, Divorce and Custody Issues

Posted by Daniel Clement on March 03, 2008
I am back from a much needed warm weather winter vacation with the family. Now, back to blogging.

While I was away, Justice Laura Drager rendered an important decision in the case Beth R. v. Donna M. Following the decision in Martinez v. Monroe County, which I discussed here, Justice Drager ruled that a same-sex marriage, validly entered into in a jurisdiction that allows same-sex marriages, would be entitled to full legal recognition in New York. This is the first time that a New York court recognized a same sex marriage in the context of a same-sex divorce action.

The decision went further, applying the expanding theory of equitable estoppel, to address the issue as to whether Beth's motion for declaration of her parental rights can be entertained by the court since she did not legally adopt the two children but served as their mother in fact. The Court concluded that “the facts here warrant granting Plaintiff's motion to enable this court to determine whether the best interests of the children warrant granting custodial rights to Plaintiff.

As pointed out in the Leonard Link:

Although Defendant did not allow the adoption of the children, she held out Plaintiff to the world, and most important, to the children, as their parent. The children were given Plaintiff's last name. The birth announcements presented Plaintiff as the parent of each child. J.R. [the older child] was encouraged to call Plaintiff 'mom' and Plaintiff's relatives by familial titles. The extended families of each party were encouraged to treat Plaintiff as a parent. Defendant held out Plaintiff as a parent to the children's nanny, doctor and J.R.'s teachers and school administrators. Defendant accepted health insurance and financial contributions from Plaintiff for the benefit of the children.

And, of course, there is the marriage. "Although Defendant seeks to minimize the significance of the act of marriage, the law does not share her view. Marriage is 'a status founded on contract and established by law. It constitutes an institution involving the highest interests of society. It is regulated and controlled by law based upon principles of public policy affecting the welfare of the people of the State.' Fearon v. Treanor, 272 NY 268, 272 (1936). As a result of being married, Plaintiff may be constrained to provide support for the Defendant and Defendant would be a recipient of a portion of Plaintiff's estate. These factors significantly affect the children's welfare. Moreover, although people enter into marriages for many reasons, creating familial bonds is one of the most significant reasons, particularly for the benefit of their children. The parties here were clearly committed to becoming married, having traveled twice to Canada and having obtained two marriage licenses. It is noteworthy that the Defendant voluntarily entered into the marriage after her first child was born. Furthermore, as Plaintiff argues, the artificial insemination during the marriage resulting in the birth of S.R. may require a finding that she is the legitimate child of both parents."

Justice Drager also notes that by age three a child "clearly identifies with parental figures" and so J.R. could be harmed by suddenly terminating his relationship with Beth, and it is "conceiveable" that young S.R. could be harmed as well. And, of course, both children would suffer potential economic harm due to loss of support.

Now that the door is open to the judicial acceptance of same sex marriage, it will be interesting to see how the law evolves to provide for same-sex divorce.