Compensation for Kidney into Divorce Denied By Court

Posted by Daniel Clement on February 26, 2009

Human organs are not assets to be distributed in a divorce. Thus is the ruling in  Batista v. Batista, the case in which a Long Island doctor sought compensation for donating a kidney to his wife,

The National Law Journal reports that:

At its core, the defendant's claim inappropriately equates human organs with commodities," Referee A. Jeffrey Grob wrote in Batista v. Batista, Jr., 201931/05. Grob noted that while the term "marital property" is "elastic and expansive ... its reach, in this Court's view, does not stretch into the ether and embrace, in contravention of this State's public policy, human tissues or organs.

Public Health Law §4307 makes it a felony for "any person to knowingly acquire ... for valuable consideration any human organ for use in human transplantation.”

While morally repugnant and questionably legal, the doctor’s claim for compensation for “sacrificing” his kidney is creative. Even the court noted that while it will not directly compensate the husband for his kidney, his “altruism” may be considered in distributing other marital assets.

While the court order provides that  Dr. Batista may not offer economic proof of the value of his organ donation, the Court did  "not suggest that the sacrifices, magnanimity and devotion, which arguably and logically attend [to the organ donation], are beyond the pale or lack relevancy."
 

What is a constructive abandonment?

Posted by Daniel Clement on February 23, 2009

Despite overwhelming support to adopt a no-fault or irreconcilable grounds for divorce, New York remains the only state in which a party must allege and prove marital fault in order to obtain a divorce.

By far, the most common fault based ground for divorce in New York is constructive abandonment. In the recent case of Mehl v. Mehl, the Appellate Division defined the elements of this ground for divorce.

It is well settled that to establish a cause of action for a divorce on the ground of constructive abandonment, the spouse who claims to have been constructively abandoned must prove that the abandoning spouse unjustifiably refused to fulfill the basic obligations arising from the marriage contract and that the abandonment continued for at least one year.


“Basic obligations arising from the marriage” is legalese for sexual relations.

In order to rise to the level of constructive abandonment, the refusal to engage in intercourse must be "unjustified, willful, and continued, despite repeated requests from the other spouse for resumption of cohabitation'"

Further, as the Mehl case illustrates, the person seeking the divorce cannot be the party who refused to have sex.
 

Constructive Emancipation: The Breakdown of a Relationship Between Parent and Child and the Termination of Child Support

Posted by Daniel Clement on February 17, 2009

Within the last month, the Appellate Division, Second Department, has decided several interesting family law cases. One, in particular, directly answers a question I am frequently asked, which, in some form, goes like this: My son refuses to visit me; do I have to pay child support for him?

The answer, as supplied by the Court in the case of Gold v. Fisher, is- it depends.

. . . .a child of employable age who actively abandons the non-custodial parent by refusing all contact and visitation" may forfeit any entitlement to support In contrast, where it is the parent who causes a breakdown in communication with his child, or has made no serious effort to contact the child and exercise his visitation rights, the child will not be deemed to have abandoned the parent.

The parent seeking to have the child “constructively emancipated” has the burden of proof. From my experience, given that this is a drastic remedy, which may punish the custodial parent (who may or may not be at fault) as much as the child, courts strive to discover the true origins of breakdown of non custodial parent-child relationship.

If the evidence shows that the non-custodial parent is in any way at fault for the estrangement, the application will be denied and the obligation to pay support will continue. If the non-custodial parent is blameless, support will be terminated.
 

Madoff Loss Jeopardizes Divorce Settlement

Posted by Daniel Clement on February 06, 2009

To the list of things Bernard L. Madoff has been blamed for ruining — retirements, lives, reputations — add another: a clean breakup.”

The New York Times is reporting that a husband (a lawyer), who, entered into a settlement agreement distributing marital assets, which included an investment in Madoff’s hedge fund, is seeking contribution from his ex wife for the post-divorce losses sustained in the Ponzi scheme.

Rather than splitting an investment in the Madoff hedge fund, the husband gave the wife $2.7 million in cash and held onto the account. Of course, the account is now worthless. The husband wants his ex wife to share in his loss.

Good luck!

Had the wife participated with Madoff in the fraud or had knowledge of the wrong-doing, the husband might have a case. But, the husband simply made an unfortunate choice and, through no fault of the wife, lost his investment.

Had the account value gone up, it is doubtful that husband would have shared the profits with his ex-wife. Alternatively, had the wife poorly invested the cash she received from the husband, she would have no claim against the ex-husband for her loss. And what about all the people who bargained for the marital home, which is now worth substantially less than it was one year ago-should they look to have their former spouses share in the loss?

There is a practical reason why the husband cannot win this case-if the mere fact that some former marital asset lost value could subject a settlement agreement to attack, there would be no finality to divorce. Every agreement would be at risk for a post divorce attack. In order for there to be finality, in absence of fraud, duress or coercion etc, agreements must be enforced, without the benefit of hindsight
 

Man Entitled to Inherit Same-Sex Spouse's Estate

Posted by Daniel Clement on February 04, 2009

Courts throughout New York continue to expand the rights of parties in same-sex marriages. For the first time, a judge has ruled that the survivor of a legal same-sex marriage is entitled to inherit from his spouse's estate.

Although New York will not recognize a same-sex marriage performed within the state, with a few exceptions, courts and state agencies will recognize marriages solemnized in Canada, Massachusetts and other states where same sex marriage is legal.

In Matter of the Estate of H. Kenneth Ranftle, Surrogate Judge Kristin Booth Glen designated J. Craig Leiby as the "surviving spouse and sole distributee" of H. Kenneth Ranftle, who died on Nov. 1, 2008, just five months after they married in Quebec.

This decision confirms that a person may provide for his/her same sex spouse to inherit his/her estate as a spouse. But this decision, raises an interesting question- in New York, a spouse cannot be dis-inherited. Each spouse has a right of election to take a prescribed minimum percentage of his/her spouse’s estate. This right of election ensures that one spouse inherits something from the other.

The question then becomes, what would happen if Mr. Ranftle died with a will that made no provision for his spouse, Mr., Leiby- would the court allow Mr. Leiby to assert his right of election? It seems to me it would be that it would be inconsistent not to.

Likewise, had Mr. Ranflte died without a will (intestate), would Mr. Leiby have the right to inherit as his spouse, as would be the case in a heterosexual marriage?

If New York is going to recognize, as valid, marriages lawfully performed in jurisdictions that permit same sex marriages, then, Courts will have to recognize and enforce all of the rights that arise from a lawful marriage. It follows that same sex spouses should have the rights of election and to inherit in cases of intestacy.