Massachusetts to Allow Foreign Same Sex Marriage

Posted by Daniel Clement on July 31, 2008
Massachusetts will soon allow same sex couples from other states to wed reports theSteven Ballard in the Massachusetts Divorce & Family Law Blog.

As I previously reported, while New York will not allow same sex couples to wed, it will recognize as valid, marriages performed in jurisdictions that allow same sex marriage.

I guess New England will soon become a popular wedding andhoneymoon destination for New York’s same sex couples.

YouTube Divorcee Loses in Court

Posted by Daniel Clement on July 22, 2008
The verdict is in - it is no shock that the Youtube videos of Tricia Walsh-Smith back fired.

I previously wrote about how Mrs. Walsh-Smith lashed out against her husband Philip J. Smith in the her now famous YouTube video.   In the video, Ms. Walsh-Smith discusses, her marriage, the unfairness of her pre-nup, her marital sex life and more.   At one point in the video, she even  called her husband’s office and spoke to his assistant about his stash of Viagra and porn.

In my post, I predicted that this attempt to humiliate her husband would not be helpful to her case.

I hate to say I told you so, but my pointed criticism of Ms. Walsh-Smith was predictive of the court’s decision.

In granting a divorce to her husband Philip J. Smith on the grounds of cruel and inhuman treatment, Justice Harold B. Beeler found that Tricia Walsh-Smith's "exposure" of his private life caused him "enormous mental distress.”

As the New York Post put it:


Beeler blasted Walsh-Smith for her video stunt, which he called "a calculated and callous campaign to embarrass and humiliate her husband" and to pressure him into settling the case on more favorable terms than were stated in their prenuptial agreement.

The New York Law Journal quoted the decision:

 Given Ms. Walsh-Smith's YouTube postings and "her exploitation thereof in the media circus" that ensued, "there is no doubt that her conduct, taken in its totality, has now so endangered the plaintiff's physical or mental well-being as to render it unsafe or improper for him to cohabit with the defendant

The Judge found that the prenuptial agreement, signed three weeks before the couple's 1999 wedding, was valid. Walsh-Smith must now leave their Park Avenue apartment within 30 days. 

Now, the only question is will Walsh-Smith make a follow-up video about how the judge or her attorney wronged her.   

After Divorce, Update Your Will

Posted by Daniel Clement on July 15, 2008
It is always a good idea after a divorce to update your will or to change the beneficiary designations on your insurance policies and investment accounts. Prior to the divorce it was likely that your wife was your heir or beneficiary. After your divorce, you may not want your ex to benefit from your death.

Problems arise when someone dies and their pre-divorce will or beneficiary designation has not been changed and their spouse is the beneficiary. .


While a disposition in a will to a former spouse would be  revoked by a divorce or an annulment, until recently a divorce did not revoke many other revocable dispositions which are essentially like wills (so-called "testamentary substitutes"), such as lifetime revocable trusts (including Totem Trusts), life insurance policies, or joint tenancies (including joint bank accounts). 

A new law was enacted to end this inconsistency. Now, according to the law’s legislative memorandum:

.  .  .  a divorce or annulment would revoke any revocable disposition or appointment of property to a former Spouse, including a disposition or appointment by will, by beneficiary designation, or by revocable trust (including a bank account in trust form). It also would revoke any revocable provision conferring a power of appointment on the former spouse and any revocable nomination of the former Spouse to serve in a fiduciary or representative capacity, such as nomination of the former Spouse as a personal representative, executor, trustee, guardian, agent, or attorney-in-fact. Finally, a divorce would sever joint tenancies between former Spouses (including joint bank accounts) and transform them into tenancies in common.


The law is applied so as to treat the surviving former spouse as if she/she predeceased the decedent.

So, how to avoid the application of this law? It is simple. Update your will and beneficiary designations after the divorce is granted. Get your ex-spouse out of your will.  If you really want to benefit your former spouse, spell out your desire in your updated will.

Recession and Divorce

Posted by Daniel Clement on July 10, 2008
I was featured in an article on Forbes.com about divorce during the recession.

Quoting Billy Joel’s lyric, “They started to fight when the money got tight. . .”
I have definitely noticed an increase in work, telephone inquiries about divorce and even traffic to this blog as the economy soured.

My experience, according to the article quite explainable . “Recession has always been a factor raising divorce rates," explains University of Chicago Business School economist Gary Becker."



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Lessons From the Tabloid Divorces

Posted by Daniel Clement on July 09, 2008
A-Rod, Christie Brinkley, Madonna. There is no escaping it. Divorce is all over the news. The tabloids (and their readers) are eating it up.

The issues in these celebrity divorces are, in large measure, the same as those of everyone else. Granted - few of my cases involve the wealth of someone like A-Rod.

These cases seem to all have the recurrent theme of adultery, infidelity and loss of trust. As a result of the betrayal, marital assets will have to be divided.

The very public Christie Brinkley trial is particularly compelling. It is providing a primer on how a child custody trial works. In a child custody case the inquiry is what are the best interests of the children. In the Brinkley case the court must decide if the children should be in the sole custody of the mother or whether there should be some type of shared custody. The trial also demonstrates the role of mental health professionals in a custody fight.

The very public process, the attorneys and the press all try to demonize or to paint parties as “all good” or “all bad.” In my experience, this is often not the case. In most cases, the spouse you loved and married years ago, did not over-night morph into some unrecognizable evil force. While all the parties to the process are flawed, they have good attributes as well.

At the end of the custody battle like Christie Brinkley’s, there are no winners, only losers. The parties will not only have lost their dignity, they will also have lost the ability to share, together, the joy of life’s great events like their children’s graduations and weddings, or even the birth of their grandchildren.

The children will certainly lose. In the end, they will be drawn into the “battle” and become alienated from one, or both, of their parents.

In the end, the lesson from these trials should be that divorcing parents should, to the extent possible, agree that they cannot live together and that the marriage should end. While there may be some dispute over economic issues, parents should, to the extent possible, work together to find a way to share responsibility for raising their children

State Bar Provides Video on New York Divorce

Posted by Daniel Clement on July 01, 2008
The New York State Bar Association has produced a video “The Divorce Process in New York: What you Need to Know “ which can be viewed online by hitting the hyper-link.

The video provides a good overview of the law in New York, covering  topics such as child support, maintenance, equitable distribution and domestic violence. It even addresses attorneys’ fees and retainers.  

For those new to the divorce process, it  would be beneficial to view the video before  having a consultation with an attorney.