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

Divorce Mediation can be an effective alternative to litigating a divorce in court.  Rather than being adversaries in a courtroom, mediation allows you and your spouse to be engaged decision-making partners in resolving your divorce.   Divorce mediation allows you and your spouse, with the assistance of a neutral mediator, to structure a settlement that resolves the divorce in a way that is important to you. 

The mediators do not represent or counsel either spouse. Instead, the mediator’s role is that of an unbiased, neutral third party who facilitates an agreement that addresses the needs, wants and desires of both parties.

Mediation is particularly effective when the parties have children and both parents share the common goal of doing what is best for the children. 

Since everything discussed as part of the mediation is confidential, the parties are free to exchange idea and discuss settlement scenarios that they may not otherwise be open to in a more adversarial or litigated setting.   As a result, it may only take a few sessions to identify and resolve all of the issues relating to the divorce, saving the parties the emotional and economic expense associated with drawn out court battles.

A good and effective mediator will keep the lines of communication open, encourage the parties to think out of the box and brainstorm about ideas that will lead to a lasting settlement.   A successful mediation will result in an agreement, drafted by the mediator, memorializing the terms of agreement.  Most importantly, the parties will be satisfied that even if they did not get everything they wanted, the settlement is fair and, at a minimum, their voice was heard.  

Another New York court has ruled that New York's no-fault divorce statute does not provide a defendant with a right to trial.  In doing so, the court ruled that a party is not entitled to challenge the other spouse's allegation that the marriage has irretrievably broken down.

In No Fault Nuttiness: Why Modern Divorce is Lunacy, Beverly Willett wrote a scathing criticism of no-fault divorce.    Central to Ms. Willett criticism is her misplaced belief that divorce is about “innocence” “wrongdoers” and efforts to “receive compensation for your loss.”  Divorce is about none of those.  

Divorce is simply the process of unraveling the marital partnership.   Even before New York adopted no fault divorce and, except in the most egregious cases, marital fault had no impact equitable distribution.   No fault divorce simply institutionalized that. 

Divorce need not be about lying blame, pointing fingers or airing dirty laundry.   The process, even without a need to establish fault, is emotionally and economically draining.   If the purpose of divorce was to award “compensation for your loss” divorce would be a blood sport; there would be no winners, except divorce attorney’s who profit from litigation.  Ironically, divorce attorneys were the moving force behind no fault divorce.    

 Ms. Willett writes about how no-fault divorce empowers one spouse to unilaterally end a marriage and obtain a divorce against the will or to the surprise of the other.  In most cases, one spouse does not simply wake up one morning and spontaneously decide that their marriage is over and file for divorce; at some level the couple must be experiencing problems.  My antidotal experience is that people who are surprised by their spouse’s desire to divorce are simply living with blinders on.

Regardless, even if the announcement “I want a divorce” comes out of the blue, placing a barrier to divorce will not revive a dead marriage.   A denial of a fault based ground did not require the parties to reconcile; it just locked two resentful people in a dead marriage.

Interestingly, Ms. Willet calls the matrimonial parts a “divorce factory” “Because most judges face a huge volume of cases, litigants get herded in and out as quickly as possible.” This is true. Judges, however, freed of the need to hear pointless and, often, long winded, tales of adultery, abandonment and name calling, can have more time to do justice - to evaluate custody disputes and to equitably distribute the property of the marriage. 

No fault divorce rather than leading to lunacy, brings rationality to divorce.  Gone from the process are the emotional issues of blame and wrong-doing.  Judges are instead empowered to deal with the issues that really matter-the financial well being of the family and the health, welfare and safety of the children. 

According to a study, there has been a 12 percent increase in divorce filings since no fault divorce went into effect in New York in October 2010.  The study compares divorce filings over the same seven month period last year. 

Rather than falsely assuming that the floodgates have opened and that no-fault divorce encourages divorce, I think the increase in divorce filings is readily explainable. 

During the period between the time the no fault divorce law was enacted and became effective, I suspect divorce filings were down.   I certainly held off on filing for divorce in cases in which grounds would be an issue; in such cases, I waited until after the effective date of no fault divorce to file.   In one instance, I even discontinued a case in which a grounds trial had been scheduled in order that it could re-commenced after no fault divorce became effective.  By waiting until after the effective date of the no fault divorce statute to file, my client was able to completely avoid the trial and the issue of grounds.  

Secondly, by coincidence, I suspect divorce clients have grown economically optimistic since the enactment of no fault divorce.   Divorce filings were “down” during the recession; divorce became a luxury item when clients were facing unemployment.    In my present discussions with clients, I sense greater optimism; clients seem to be more secure in their jobs and more willing to address their marital discontent. 

While it would be interesting to see the impact of no fault divorce on the divorce rate, a longer sample period may be required in order to draw any meaningful conclusions about the correlative effect of no fault and the divorce rate.   

The old adage, “Be careful what you wish for, you may get it” is particularly true in the case of same sex marriage. 

Though same sex couples cannot marry in New York, New York courts have recognized, as valid, marriages performed in jurisdictions where same sex marriages are legal.   Same sex marriages are, however, no more immune from marital discontent, infidelity, or the other problems that doom marriages than their heterosexual counterparts.     Inevitably, there is same sex divorce.  

 As reported in the Fort Greene-Clinton Patch, if New York were to enact a law permitting same sex marriage:

21,309 gay and lesbian couples in New York would get married during the first three years the law is put into place. With New York's current divorce rate of 8.4 percent, that would mean 1,790 of these couples could potentially split up.

Even in the absence of a law permitting same sex marriage, I have been representing same sex litigants in divorce actions.   Same sex divorces are no different than heterosexual divorces.  The issues of equitable distribution, spousal maintenance, and child support and access (parenting time or custody and visitation), permeate a divorce case without regard to sexual orientation;  same sex couples suffer the same misery and costs as divorcing heterosexual litigants. 

The New York economy, however would certainly benefit from same sex marriage.

In light of the recent report published by the State Senate's Independent Democratic Conference, which showed marriage equality in New York would generate $391 million over the first three years it is put into law, local lawyers have been considering that gay divorce could potentially bring in tens of millions of dollars for the state economy.

Bottom line- money  disputes fuel divorces.   While the parties fight for every penny in dividing the marital assets, the parties often fail to tax impact their settlements.  The failure to consider taxes could “steal defeat from victory.”  

Here are five tax tips that should be considered before entering into a divorce settlement

1.While two assets may have the same “value” they may not be equal. 

Two assets, though equal in value, may be treated differently for tax purposes.  Capital gains taxes for instance are calculated based on the profit reaped from the sale of the asset.   The profit is the difference between the sale price and the asset’s cost basis.   Though the assets may, at thee time of divorce, be equally valued, the asset which cost less may have a bigger capital gain, resulting in a higher tax bill

 In a common scenario, a couple possesses a stock portfolio and a home equally valued- which one should you choose?  A homeowner, under certain conditions, is permitted to exempt $250,000 ($500,000 for a couple) from capital gains from the sale of the marital residence.  The stock portfolio will be taxed on each stock’s capital gain or loss. 

2.  You may spend time with your children, but they may not your dependants.

The right to the dependency exemption for the children goes to the custodial parent. In the case of joint custody arrangements, the exemption goes to the parent whose home the child spent the most number of nights. If custody is truly equal, the parent with the highest adjusted gross income gets the deduction

The parents can agree to alternate or transfer the dependency exemption by filing the IRS form 8332.    Where there are multiple children, the parties can even agree to split the children so that each parent can benefit from the dependency exemption. 

3. Maintenance/alimony is deductible.

Periodic support payments to your spouse made pursuant to a written agreement or judgment that are not child support may be income to the recipient and deductible by the payor. 

4.  You may be able to time the entry of the divorce to your tax advantage.

Your income tax filling status is determined by your marital status on the last day for your filing period, for most people, December 31.    If, for instance, you would benefit from filing a joint return- for example, if there was a capital gain of $500,000 from the sale of the marital home which could be exempted by filing a joint return, it may be prudent to delay finalizing the divorce if the sale and the divorce were to occur at the end of the tax year.   

5.  Child support is tax neutral.

Unlike maintenance, child support is tax neutral

CNBC aired a show the “Divorce Wars” about high net worth divorces.   From the broadcast, as reported by Melissa Francis,  five distinct lessons emerge about divorce. 

 1. Cheating Does Not Matter.

All states, including New York,  have some form of no fault divorce.   As a result of no-fault divorce, adultery and other fault grounds are largely irrelevant to the division of assets.    Marital fault could be relevant to child custody issues. 

 2. You really cannot hide assets. 

Forensic accountants will scrutinize the financial records, looking for discrepancies, inconsistencies and missing funds.   If funds cannot be accounted for, they will be charged against the “liable party’s” share.            

 3.  Pre-Nuptial Agreement can protect you.

While any discussion about divorce and distributing assets on the eve of marriage may be unromantic and unseemly, a pre-nup is the best way to protect assets in the event of divorce.  At a minimum, the parties will be far more reasonable in their demands when they are planning to wed then they will be when they are divorcing.  

A common mis-conception is that pre-nups are only for the rich and famous they are not.  A pre-nup is appropriate for anyone conemplating marriage.  

4. With a spouse who has been short-changed, the divorce may never be over.

A divorce settlement can always be set aside if one party can demonstrate that it was procured by fraud.  As Raoul Felder noted, "An angry spouse is more lethal than the IRS, because the spurned spouse hates you. The IRS doesn’t actually hate you."

5. You can afford to fight a divorce.

There are now business that are willing to finance the divorce in exchange of a share of the settlement. 

When a couple weds, few contemplate that their marriage will end in divorce.   The hope is that their marriage will be forever; the reality is, however, that some will end, often bitterly, in divorce.   Much of the acrimony of divorce could have prevented if the parties simply had a pre-nuptial agreement. 

So why do couples, who are aware of the risks, fail to even consider entering into a pre-nuptial agreement?   Diana Mercer in This is Not Your Parents' Prenup: Debunking Prenup Myths offers several explanations, with my comments added:

•  Prenuptial agreements are only for wealthy people; my fiancé and I are just starting out or have nothing. 

Things change.  As you become older and more accomplished in your career your income will increase.  Your assets, particularly your  home, your savings and your retirement accounts will become more valuable.  You may inherit money or property from your family.  The pre-nuptial agreement can protect the accumulated wealth and provide for how it will be dealt with if a marriage ends in divorce or death.

•  Prenuptial agreements only protect the wealthier spouse and leave the other spouse with little or nothing.

Pre nuptial agreements must be fair.  If the agreement is found to be unconscionable, it will be set aside.  Particularly where there is disparate wealth, the pre-nup can  provide for maintenance for the non-moneyed spouse in the event of divorce.    

• Premarital Agreements must cover everything, soup to nuts.

The agreement can be tailored to your specific desires.   I have written agreements that were limited to how one asset how- a prospective inheritance -would be handled in the event of divorce.   On the flip side, I have prepared agreements that micro-manage how funds will be budgeted and expenses paid throughout the marriage. 

•  Premarital Agreements Aren't ROMANTIC

 The words “pre nuptial agreement” may be the most unromantic words I know.  However, those words are generally uttered between two people who love each other and plan to invest their lives together so that there is incentive to work together and be reasonable in planning for a possible future without each other.   Contrast the pain of saying the word “pre-nup” with the bitterness of a divorce, where greed and irrationality dominate- there is no question which is more painful.   

When no-fault divorce came to New York, it was supposed to end the need for grounds trials.   Fault trials are universally viewed as time consuming and needlessly expensive; no fault divorce was supposed to be the panacea. 

When enacted, it was assumed that the allegation that “the marriage had irretrievably broken down with no prospect of reconciliation,” would create an irrebuttable  presumption that would, in essence, establish the ground for divorce, completely eliminating the need for a grounds trial. 

However, in Strack v. Strack, an upstate judge ruled that because the new law does not explicitly abolish a right to trial in a divorce action, a party is entitled to a trial to determine:

whether a breakdown of a marriage is irretrievable. . .. This Court does hold, however, that whether a marriage is so broken that it is irretrievable need not necessarily be so viewed by both parties. Accordingly, the fact finder may conclude that a marriage is broken down irretrievably even though one of the parties continues to believe that the breakdown is not irretrievable and/or that there is still some possibility of reconciliation.

I am not sure what a divorce defendant gains by forcing a trial on the issue of whether a marriage has irretrievably broken down.  Even if the defendant prevails at trial, it is doubtful the other party will put all the problems of the marriage behind him and resume the marital relationship.  

Doesn’t the fact that a trial is required to resolve a conflict about the viability and the health of marriage actually prove that the marriage has irretrievably broken down? 

This nonsense must end.  New York’s no fault divorce law must be amended to provide that mere allegation, made under oath, that a marriage has irretrievably broken down establishes this ground for divorce, thereby eliminating the need to ever try this issue. 

In a front page article, Binyamin Appelbaum in the New York Times explored the newest trend in divorce-third parties are investing in and funding divorces.  A funding company “invests” in a divorce and advances the litigant money to pay the costs of the divorce.   The litigant repays the loan at the conclusion of the case- generally as a percentage of their “winnings.”

 According to Stacey Napp, the founder of one funding company, Balance Point, “Everybody knows somebody where at the end of the day, the divorce was not equitable,” she said. “We want to help those people, the underdog, to make sure they get their fair share.”

So, is there a need to have a third party to invest in a divorce action?   Perhaps!

Recently, New York amended its law regarding awards of attorney’s fees in divorce and other matrimonial actions.  The law was intended to even the playing field in divorce actions between the money and non-moneyed spouses.   According the law, judges are to presumptively award attorneys’ fees and expert expenses to the non-moneyed or economically dependent spouse.

 In most cases, an award of attorneys’ fees is sufficient to even the playing field between moneyed and non-moneyed spouses in a divorce.   However, in the extreme cases, where money and assets have been secreted or the moneyed spouse is employing a strategy of delay and obfuscation intended to economically wear the other party out, third party financing may be useful.  

 Indeed, Napp conceded that third party funding is not for everyone. 

The company wants to focus on people with marital assets between $2 million and $15 million, a bracket Ms. Napp described as “the lower end of the high end.” She said that investing in smaller disputes was not worthwhile. Wealthier people, she said, seemed to resolve divorces more easily — perhaps because they still felt wealthy in the aftermath. 

 Another concern is control of the case. 

Most lawsuit lenders avoid any role in the management of cases, seeking to disarm critics who worry that lenders seeking profits will corrupt the pursuit of justice. Ms. Napp, by contrast, sells the benefit of her own experience.

Ms. Napp said that as she decided to create Balance Point, she realized that she could not settle her own case. “I had to win,” she said. “Because I don’t know that, if you don’t have a happy ending, that people are going to think it’s such a fantastic idea.”

It is no secret that mounting legal fees and the costs of litigation often facilitate the settlement of a divorce.   No one wants to pay legal fees.    If the case is resolved, the hemorrhage of seemingly endless legal fees stops.  On the other hand, if the costs of going forward are removed, there would no incentive to settle.  

The “divorce loans” are not free.   The litigant has to pay an undisclosed percentage of the “winnings” to the lender.      

Divorce funding would be appropriate in limited circumstances.   It would only be appropriate it cases where the marital estate is sizable and one spouse is economically dependant on the other.   Obviously, this type of financing would not be appropriate where the issues are non-economic, like custody or access to children.

You are going through divorce- you retain an attorney and at the end of the day you have a visceral reaction-you either love or hate your divorce attorney.   While a good attorney could use his legal knowledge and skills to get you a better settlement, the facts of your case largely determine the outcome of your case.    So why then, do clients have such extreme reactions to their lawyers?

 In large measure, the client’s satisfaction with his legal representation is directly related to his expectations from the attorney-client relationship.   So what can the client expect of his attorney?

Cathy Meyer in her article Are You Expecting Too Much From Your Divorce Attorney?  identifies five things clients should minimally expect from their attorneys:

1.         Regular Communication.. Responsiveness is crucial. More complaints are lodged against attorneys with disciplinary boards for not returning phone calls than any other reason.

In my office, it is the practice to attempt to return calls and answer client emails the day they are received .   Divorce is emotionally charged.   It can be nerve wracking and gut wrenching.  Your attorney should expeditiously answer your questions and address your concerns in a timely manner.   

2.         Full Disclosure. Your attorney should be willing to discuss in full with you what is happening in your case and what they expect to happen in the future. A good divorce attorney will suggest strategies for your case; explain the discovery process, negotiation on your behalf, and have your back should you go to divorce court.

Client’s should receive copies of all letters, emails  and legal documents.  When the communication involves a client’s  substantive rights, the  client should have an opportunity to review the final product  before it goes out.

3.         Due Process. It is your divorce attorney's responsibility to make sure you are treated fairly by the court during your divorce.

4.         Availability. Appointments with your divorce attorney are an opportunity for you to gauge where you are in the divorce process and the direction your case is heading. If you have a divorce attorney who cancels or rushes you through appointments, you have a bad divorce attorney.

5.         Basic Courtesy and Civility.

Little things matter.   It costs nothing to be courteous and polite. While the adage “the customer is always right” be not be 100% accurate in a divorce case, the client is always entitled to respect and common courtesy.  When differences of opinion arise on how an issue should be handled, the client is entitled to a reasoned, but polite explanation.    It is seldom productive to be rude,  derisive or hostile

In the end, the client should expect the attorney to  counsel and to communicate  a  strategy and an analysis of the relevant  facts and law to enable  the  client to make informed decisions about their case.

Contemplating divorce or already engaged in one?  No matter where you are in the process, five common sense rules apply to all family law cases:

• Don't underestimate the fury of a scorned spouse.

“Heaven has no rage like love to hatred turned.  Nor hell a fury like a woman scorned."   Anger, jealously and feelings of betrayal inspire the need for revenge.  A divorce premised on the need for revenge will be costly (economically and emotionally), bitter and damaging to all. 

• You can listen to your friends, but maybe don’t pay attention to them.

Divorces are fact specific.  The facts of your case are different from your neighbors your friends, and your co-workers.   The facts of your case will determine the outcome.  So, when a client tells me that “My hairdresser said that I should do. .  . “  or  that  “I am entitled to. . . .”  I try to find out when the hair dresser started practicing law.   By analogy, I don’t tell my mechanic how to fix my car.

• Don't write or say anything that you don't want to be read or heard in court.

Social network postings, pictures, and even causal asides will be used against you in a contested divorce or a custody fight.  Your own words could be the strongest evidence against you.  If you don’t want something to be used against you, exercise discretion and don’t say it, post it or photograph it.   

• Don't let any anger, guilt or remorse get in the way of a reasonable and fair settlement.

Settlements should objectively fair, based upon the facts of the case.  The emotions of anger and guilt cloud judgment. For instance,  a spouse who feels that he/she betrayed the other by having an affair, may be willing to “give away the farm” to satiate feelings of guilt.  On the other hand, the betrayed party may have a knee jerk reaction rejecting a fair settlement offer because it does not provide for loss of the other’s body parts.   Accept the advice of your attorney and financial advisors in order to resolve your case.  

• Hire a lawyer who practices matrimonial law, not someone who handles divorces only occasionally.

Due to the complexity of the issues involved in the dissolution of a marriage, ranging from the valuation and distribution of assets to the custody and care of children,you should seek representation from an attorney well versed in this particular area of law, not from someone who dabbles.  

This is an historic week in divorce law in New York.  The recently enacted no fault divorce law becomes effective October 12, 2010.    In addition to no fault divorce, three other divorce laws become effective this week including:

1.   a new procedures for setting awards of temporary maintenance while a divorce is pending;

2.  a procedure for reviewing and modifying child support awards; and

3.    a law making it easier for the less monied spouses to receive an award of attorneys’ fees during the divorce.  

Here are the highlights of the new laws:

• No Fault Divorce

            The law creates a new cause of action for divorce. Couples can now seek a divorce when the marriage has irretrievably broken down for a period of six months preceding the commencement of the divorce action.    

• Temporary Maintenance 

The new law provides that maintenance is to be awarded during the divorce when one parties’ income is less than 2/3’s of the other spouse’s income.  

The amount of maintenance is to be the lesser of a) 30% of the payor’s income minus 20% of the non-payor’s income or b) 40% of the combined income minus the non payor’s income.  (New York Temporary Maintenance Calculator)

• Counsel Fees

  The  counsel fee bill creates rebuttable  presumption that the “monied”  spouse should pay to the “non-monied” spouse interim counsel fees in all divorce or family law case.  The purpose of the law is to
”even the playing field.” 

•  Modification of Child Support

The Family Court Act ("FCA") was amended to allow modification of an order of child support due to "substantial change in circumstances".

In addition, unless parties specifically opt out, the court can modify a post October 13, 2010 order where three years have passed since the last order was entered, modified, or adjusted. Substantial change in circumstances is generally defined in a change in either party's gross income by 15% or more. A reduction in income shall not be considered as a ground for modification unless it was involuntary and the party has made diligent attempts to secure employment.

More couples are entering into pre-nuptial agreements reports Reuters.   It is not just the rich and famous looking to protect their assets, more and more middle class couples are entering into pre-nuptial agreements. 

 As reported by the American Academy of Matrimonial  Lawyers, increasing numbers of women are asking for  pre-nuptial agreements.  

More women are working now than in precious decades and they are earning higher salaries. Women comprised 46.8 percent of U.S. workers in 2009, according to the U.S. Department of Labor and that number is expected to rise to 46.9 percent in 2018.

"In our historically male-dominated culture women didn't control money and now they need to plan as much as the men. More women have more assets these days and have more control over funds," said Moses, a family lawyer with 30 years of experience.

While marriage is supposed to be forever, the sad reality is that one half of all marriages will end in divorce. A pre-nuptial agreement can limit the acrimony at the time of a bitter break-up as assets and liabilities can be distributed in a pre-determined manner.  In most cases, New York courts will enforce a properly executed pre-nuptial agreement so long as it was not procured as a result of fraud, coercion or duress.    

 J. Benjamin Stevens in the South Carolina Family Law Blog, discusses what he calls the “Three Meeting Rule.”  According to Stevens, it takes three meetings with a client for an attorney to get a true view of a case.   

As Stevens points out, one meeting is wholly insufficient to learn the intricacies of a case

 The types of issues that a client needs to discuss with his attorney in Family Court cases can be (and often are) embarrassing. Imagine for a moment what it must be like to have to tell a complete stranger the most intimate details of your married life, to perhaps have to relive a particularly painful incident, or to admit to some extremely embarrassing things that you have done.  Doesn't sound like much fun, does it?

While it is important for a client to be completely candid with his/her attorney, it would be unrealistic to expect “all cards to be laid on the table” initially.  Regardless, it is important for a client to quickly understand that no matter what issue the client wants to avoid discussing, his/her dirty laundry will be aired in the course of the divorce unless his/her attorney knows about it and is prepared to deal with it. 

No matter how painful, embarrassing, or abhorrent, it is far better to hear the damaging or embarrassing facts directly from the client in the privacy of a closed office, then in open court or a conference with a judge.   Properly prepared and armed with the facts, a weakness can be re-cast as a strength in the same way that martial artists are taught to channel their opponents’ energy against them. 

For example, I had a client that enjoyed partaking in activities that could be embarrassing if exposed to the client’s friends, family and co-workers.   Because I knew of the “activity” and of the client’s spouse threats to expose my client, we were able to diffuse the threat by acknowledging the activity during a court conference and revealing the spouse’s attempted extortion; by doing so, the court admonished the spouse not to reveal my client’s secret and, I believe, thereafter viewed the spouse as mean, greedy and vindictive.

New York now has no-fault divorce. 

While signing the legislation into law,  the governor noted:

Finally, New York has brought its divorce laws into the 21st century. . .  These bills fix a broken process that produced extended and contentious litigation, poisoned feelings between the parties and harmed the interests of those persons -- too often women -- who did not have sufficient financial wherewithal to protect their legal right.

New Yorkers  can now divorce provided that their marriage has irretrievably broken down for six months or more.   New York was the last state to allow no fault divorce.

Simultaneous with enactment of no fault divorce, laws for providing guidelines for fixing temporary spousal maintenance and attorney’s fees were enacted.    The legislation created a formula and list of factors to govern such awards   The purpose of which, according to the Governor, would be to. . .

. . . allow for speedy resolution of the maintenance issue, and prevent less well-off parties to divorce proceedings from falling into poverty during litigation, because they lack the resources to obtain a temporary maintenance order.

The other piece of legislation enacted today would create a presumption that a less monied spouse in a divorce case is entitled to payment of attorneys' fees.

We will take in depth looks at the new laws regarding spousal maintenance and attorneys’ fees in the very near future.  

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.
 

There seems to be a trend among couples in long term marriage, with grown or emancipated children, getting divorced. In fact, there are reports that rate of divorce is increasing the fastest among this segment of the population. Al and Tipper Gore’s surprise announcement last week that they were ending their 40 year marriage is further evidence of that trend.

The appearance of this trend begs the inevitable question why are couples, who have been together for so long divorcing. As detailed in this online debate, there are many possible explanations.

  I think, however, Deidre Bair, in her New York Times op-ed piece, The Forty Year Itch ,has it right:

“People change and forget to tell each other,” Lillian Hellman said. Marriage is a process; some couples grow together and some drift apart. For the couples that drift apart, there comes a point, where no matter how comfortably situated they are, how lovely their home and successful their children, they divorce because they cannot go on living in the same old rut with the same old person.

With children grown and out of the house, unencumbered by the costs of maintaining a household or the expense of raising children and then financing their education, couples may want to take control of their lives. Ms. Bar, from her interviews with men and women who divorced, and ended long term marriages, found that:

Women had grown tired of taking care of house, husband and grown children; men were tired of working to support wives who they felt did not appreciate them and children who did not respect them. Women and men alike wanted time to find out who they were.

Given that people are living longer, it makes some sense that some couples, after being “responsible” for their entirety of their married and working lives, desire some “me” time for their retirement during their golden years. Not surprisingly, a common theme from Mrs. Bar’s interviews was, “It’s my time and if I don’t take it now, I never will.”
 

In yet another odd case, a husband who was attacked by his wife with a three foot samurai sword,was not entitled to a divorce based upon his wife’s cruel and inhuman treatment.

Although the Court found that the wife would have killed the husband, but for his daughter’s intervention, the Court in the case S.K. v. I.K. found that:

. . . at no time did the husband testify that the alleged cruel and inhuman treatment of him by the wife so endangered his physical or mental well being as to render it unsafe or improper for him to cohabit with his wife as required by DRL §170(1). Plaintiff did not sustain his burden of proof with respect to physical or mental injuries. The testimony was that no one sustained any physical injuries, neither party was seen at a hospital or by any doctor. In fact he never contacted the police nor did he seek protection from the Family Court, and he testified that he continuously pleaded with Wife to return to the marital residence to work on their marriage.

To obtain a divorce on the grounds of cruel and inhuman treatment, a plaintiff must show "a course of conduct by the defendant which is harmful to the physical or mental health of the plaintiff such that it makes cohabitation unsafe or improper." . A plaintiff must demonstrate more than incompatibility or that they have irreconcilable differences — serious misconduct must be shown.

In a marriage of a long duration a higher degree of proof is required to establish cruel and inhuman treatment. In this case, where the parties were married since 1979 and the husband failed to offer any medical records evidencing physical or mental injury or police reports evidencing a course of conduct, this single incident was insufficient to establish a cause for divorce of action for cruel and inhuman treatment.

Certainly this marriage has irreconcilably broken down. How ironic, that in a case where one spouse nearly murders the other, the parties could not sustain a cruel and inhuman fault grounds for divorce. Is this case an argument for no-fault divorce?
 

“A spurned wife in North Carolina has made her husband’s mistress pay for ruining their marriage — literally — by suing her successfully for $9 million.”

In most states, including New York, the adulterous lovers of married people are safe; they can not be sued for alienation of affection. The cause of action has been abolished in all but a handful of states: Hawaii, Illinois, Mississippi, New Mexico, North Carolina, South Dakota, and Utah.

The New York Civil Rights Law provides that:

The rights of action to recover sums of money as damages for alienation of
affections, criminal conversation, seduction, or breach of contract to
marry are abolished.

In the North Carolina case, according to the TimesOnline, a jury awarded Cynthia Shackelford five million dollars in compensatory damages and four million dollars in punitive damages against Anne Lundquist, whom she accused of deliberately seducing her husband
 

While going through a divorce,  it is natural to feel isolated, depressed and stressed out. Therese Borchard on Beliefnet offers several tips to lessen the effects of divorce related depression.

• Find a diversion and lose yourself in it. Whether it be reading, knitting, swimming or some other activity- keep your mind occupied and stop ruminating about your divorce.
• Get out of your routine. Put yourself in a situation, outside of your comfort zone, where you have to interact with people.
• Make plans. Put your self on a schedule and stick to it.
• Clean out and organize. Part with the needless “stuff” that you accumulated during your marriage and serves as an anchor to your past married life.
• Preserve energy. Don’t overload your schedule.
• Take the high road in your divorce. Avoid the need to get in the last word in. It is often better to be happy or at peace with your self, than to be right.
• Find a support network. Replace the support you sought from your spouse with friends, family or a support group with whom you can discuss your divorce related issues.
• Remember, you are not a failure.
• Share the wisdom and insights you gained from your divorce experience with others, but ignore unsolicited and uninformed advice.
• Don’t rush the process. As with the death of a family member, you will experience, denial, anger, grief, and acceptance. Society has a mechanism for dealing with death (funerals, condolence calls, etc.) - there is no societal ritual for divorce.

The adage is time heals all wounds, but time spent alone will leave you spiteful, depressed and angry.

 

The American Academy of Matrimonial Lawyers issued a recommendation that people going through or contemplating divorce stay off Facebook and other social networking sites.

As reported in the Arizona Divorce and Family Blog:

"Going through a divorce always results in heightened levels of personal scrutiny. If you publicly post any contradictions to previously made statements and promises, an estranged spouse will certainly be one of the first people to notice and make use of that evidence," said Marlene Eskind Moses, president of the AAML. "As everyone continues to share more and more aspects of their lives on social networking sites, they leave themselves open to much greater examinations of both their public and private lives in these sensitive situations."

While this certainly seems like obvious advice, I am always amazed about how otherwise sophisticated people forget or just do not care that their estranged spouses are following their Facebook “status updates” –the danger being that their updates may undermine or contradict their litigation positions.

For example, it would be absurd for a party claiming that he/she is indigent to have recent profile photos showing them polishing a brand new expensive car or showing details of an exotic vacation. Likewise, it would be damaging for a parent engaged in a custody dispute to have profile photos showing them abusing alcohol or drugs or engaged in some scandalous activity.

Even if the posts are not legally damaging, updates bragging how well they are have adjusted to their newly single life or discussing plans with members of the opposite sex, could inflame their ex’s feelings of jealously, making it more difficult to settle a divorce.

In criminal cases, litigants are told they have the right to remain silent. People going through divorce should similarly exercise that right. It is better to err on the side of caution and stay off social networking sites until your divorce is final.

Couples who refer to themselves as 'we' are happier than those who say 'I', 'me' or 'you.”

The study conducted at the University of California at Berkley, found a link between the use of pronouns and marital happiness. According to the study, reported in the Daily News and in the Domestic Diversions blog, middle-aged and older couples who used words like “we” and “us” when discussing their marital disagreements experienced less stress than those couple who used the words “I” “me” and “you.”

Not surprisingly, more older couples than middle aged ones identified themselves as “we;” shared life experiences, birth, death and other milestones, probably gave the more senior couples a greater sense of shared identity.

According to the Daily News, earlier studies have shown that “we-ness” versus “me-ness” is a strong indicator of how happy younger couples are.

It would be interesting to see if the pronoun/identity factor is predictive of divorce. Do couples who team up to become a “we” stay together? Conversely, do couples who become polarized “me’s” divorce?
 

The absence of no fault divorce in New York has many unintended and unfortunate consequences. Perhaps the single most disturbing consequence is that divorce courts are forced to accept as true, testimony known to be false. That is, as one trial judge, recently pointed out, “it forces judges and special referees who preside over these cases to in effect turn a blind eye — or at least a myopic one — to what is technically perjury.”

In the case of Andrew T. v. Yanna T, the husband was granted an uncontested divorce from his wife on the ground of constructive abandonment- simply stated, the wife’s unjustified refusal to engage in sex for one year preceding the commencement of the divorce. Problems arose because before the divorce was granted the Wife gave birth to a child, which had to be conceived during the period when the parties were allegedly not having sex; the husband claimed he was the father.

Had the case been brought in any other state, a no-fault ground could have been alleged with no fault being assigned. But because New York does not recognize no-fault divorce, litigants are forced to assign blame and, most often, allege that they have been constructively abandoned by their spouse. As noted by the Court, herein is the problem:

. . .when the ground is utilized there is quite often a wide discrepancy between what is said to obtain the divorce and what really has taken place between the parties in the privacy of the marital bedroom.. . .

Although perjury of any kind is not to be condoned, the context in which it arises must be taken into consideration. The sad truth is that New York's insistence on fault-based divorce ends up promoting a disregard for the truth by "fostering and encouraging the embellishment of a spouse's wrongdoing as to grounds, often with immeasurable effects upon a divorcing household.

The problem takes us down a slippery slope. How can a court condone permitting perjury to make out marital fault in divorce but not in other circumstances? Why is it ok to lie about a constructive abandonment, but not the family finances?

The fix is easy. The legislature should recognize a no fault grounds for divorce and then there will be no need for courts to ever condone perjury.

 

Nothing says I hate your spouse better than a gift certificate to consult with a divorce attorney.

Bruce Carton in the Law Blog Watch, reports that one London law firm, Lloyd Platt & Company, is offering a gift voucher that entitles the bearer to a consultation with a divorce lawyer. The consultation touches upon "all the practical options available to them -- divorce being only one of the options.”

While this is an ingenious marketing ploy, I can only imagine the fireworks at the family gathering when this gift is eventually opened. At a minimum, it will make for a holiday dinner no one will soon forget.
 

There has been much ado, of late, about how text messages are the new lipstick stain on the collar-the telltale sign of an adulterous relationship. Indeed, both  Laura Holson in the  New York Times and David Wright on  Nightline did stories about this phenomenon, which has recently brought down Tiger Woods, Mayor Khame Kilpatrick of Detroit and Senator John Ensign.

For some reason, people feel immune when embracing a new technology – they feel that their use of it for illicit conduct will not be discovered. Texting a lover on a portable device that may be left on your night-table or a kitchen counter for a spouse to innocently discover is an invitation for disaster. For example, as detailed in the Times:

Doug Hampton, a longtime friend and employee of Senator Ensign’s, said recently on the ABC show “Nightline” that he was alarmed after he had borrowed Mr. Ensign’s cell phone in late 2007 to call his wife, Cynthia Hampton, and found her listed as “Aunt Judy.” Mr. Hampton said he found an incriminating text message and confronted the pair about their affair at a Christmas dinner soon after.

People naively think that text messages are not discoverable. The wireless carriers may keep records of messages for a long period after they are sent. Moreover, the person receiving the text may preserve the message for their own purposes. Indeed, Tiger Woods has learned that his lovers are using his messages to them to secure their fifteen messages of fame.

But, in the end, text messages are just the latest tool in the arsenal to catch cheating spouses. Telephone records, emails and charge card receipts have long provided clues to affairs. E-Z passes and Metro-card, too, provide a time stamped trail of where someone has been. It is only time until some spouse finds his significant other “tagged” in an embrace or some other compromising position on someone’s Facebook page.

In the end, the best way to ensure that you do not get caught in an extra marital affair is not to have one.
 

Because New York remains the only state in the country that does not provide for a no-fault divorce, creative lawyers have been forced to “push the envelope” to develop theories using the statutorily recognized grounds of divorce-abandonment, adultery, cruel and inhuman treatment, imprisonment, and constructive abandonment.

In one recent case, the wife alleged that she had been “socially abandoned” by her husband. In Davis v. Davis, the wife of 41 years claimed that her husband:

. . .refused to engage in social interaction with the wife by refusing to celebrate with her or acknowledge Valentine's Day, Christmas, Thanksgiving, and the wife's birthday, by refusing to eat meals together, by refusing to attend family functions or accompany the wife to movies, shopping, restaurants, and church services, by leaving her once at a hospital emergency room, by removing the wife's belongings from the marital bedroom, and by otherwise ignoring her.

The Second Department, however, ruled that a social abandonment does not constitute a grounds for divorce. In order to constitute abandonment, there must be an actual abandonment, a lock out of the plaintiff by the defendant, or a constructive abandonment. A constructive abandonment has:

“. . .been routinely defined as the refusal by a defendant spouse to engage in sexual relations with the plaintiff spouse for one or more years prior to the commencement of the action, when such refusal is unjustified, willful, and continual, and despite repeated requests for the resumption of sexual relations.”

The Court engaged in an exhaustive explanation as to why a social abandonment should not be recognized as a divorce grounds. Perhaps the most interesting reason given was that it would burden the courts with fact finding. Since there would be no bright line as to the appropriate level of “social intercourse,” courts would be forced to engage in a case by case analysis to determine if a social abandonment had occurred. The determination would involve consideration of “family events, meals, holidays, religious activities, spousal expectations, cultural differences, and communications.”

If however, New York recognized a no-fault or an “irreconcilable differences” grounds for divorce, courts could be divested of the need to consider grounds issues. This point was not lost on the Appellate Division, which concluded that:

The interest of the matrimonial bar is borne of its frustration that New York is the only state that requires a finding of fault or the living apart of spouses as a basis for divorce. . . The New York State Matrimonial Commission determined that contesting matrimonial fault is costly to both litigants and the judiciary. An appellate recognition of social abandonment would be a significant leap, in the view of some, toward no-fault divorce in New York, either de facto or de jure. While we are sensitive to the desire of many for a reformation of matrimonial litigation in New York including, but not limited to, the enactment of no-fault divorce grounds, this case cannot provide the vehicle for that goal.

 

I have long felt that since money and money issues are the leading cause of divorce, the economic health of a marriage is a good barometer of the overall health of marriage. Ron Lieber, in his “Your Money” column in the New York Times identifies five, often unanticipated, economic stressors capable of destroying even the strongest of marriages.

Often, the tensions brought on by financial issues have been exacerbated by a failure of communication. The parties may be foreclosed from solutions that may have been available if both the husband and the wife were “in the loop” and working together as a team.

Still, the types of problems that could destroy even the strongest of marriages can be classified as follows:

1. Reduced Circumstances.

Every long term marriage goes through the ups and downs of the economic cycles, However, as is prevalent in the current economic environment, couples faced with a reduction in income or the loss in value in assets, are forced to address the cruel reality that they can no longer afford to sustain their present marital lifestyle and must cut back.

As Lieber points out, in order to survive, the couple must re-engage and readjust their “expectations about what married life is going to look like and “redefine a relationship that’s not based around the lifestyle”

2. Complacency and Lack of Involvement

Typically one spouse manages the checkbook, and manages the investments and makes all the financial decisions. When a financial crisis arises, the finger pointing and the blame game begins.

Lieber’s solution is more transparency and conversations about assets, debts and risk.

3 Parental Care Issues

The desire to take care of a parent raises a litany of ethical and /moral dilemmas. The obligation to care for a parent has to be tempered against the cost to the nuclear family.

4. College and Adult Children

College costs are exploding, stretching the finances of the families. A couple’s retirement calculations are generally based upon projections of an empty nest, a household unoccupied by children. Now, adult children, facing their own economic uncertainty want to return “home.” Parents, though well intentioned, disagree about how and when to “cut-off “their children.

5. Uncertainty

While one crisis may not destroy a marriage, doubt and fear, over time, wears down the relationship.

The suggested solution is to be diligent, to live below your means, to save and to create a large emergency fund. Long term financial planning should include college savings for your children and long-term care insurance your parents.

While leaving below one’s means may not be possible or desirable, saving for the rainy day is advised. Communication is essential. A financial crisis can put a marriage in peril, being blindsided will destroy it.

Not all lies are equal or bad, so says Elizabeth Bernstein in the Wall Street Journal.

No one would ever claim that lies about infidelity would be acceptable. But, as Ms. Bernstein urges, “the fibs and feints and little white lies that serve as a social salve and help a relationship run smoothly.”

Some of the acceptable reasons, to fib, she argues, include- “to avoid conflict, to gain approval, to save face or just to be kind.”

Every man learns, for instance, that the answer to the question “does this outfit make me look fat” is an emphatic “No!” Perhaps this is not a lie- maybe the rose colored glasses from which a husband views his wife takes ten pounds off her backside.

Asking do I look fat or which outfit looks better on me calls for an opinion. But, would it be acceptable to lie about a fact?

One of the major reasons for divorce is that there is a loss of trust. Where do you draw the line between little inconsequential lies and the complete betrayal of trust? If the lie is of little consequence, why even bother to lie? If the entire foundation of the marriage is based on lies, isn’t the marriage destined to self-destruct?
 

The Huffington Post reported on a sad and frightening phenomenon- elderly couples forced to divorce to obtain relief from medical bills and to qualify for social security benefits.

The article details the plight of Mary McCurnin and her husband Ron Bednar. In 2003, the couple declared bankruptcy after their insurance covered only 10 percent of the treatment costs for her breast cancer and his intestinal bleeding. In 2004, McCurnin's breast cancer returned, and Bednar underwent open heart surgery.

The couple is broke and unemployed. Mary, however, was previously married. Her first husband pre-deceased her and, but for the fact that she is now married to Ron, Mary would be entitled to receive her social security survivor’s benefit from her previous marriage. The Social Security Administration told her, she cannot have the survivor benefit if she's married to someone else.

So, in order to qualify for the survivor’s benefit, she is divorcing Ron.

She could divorce him now to collect short-term benefits on her earlier husband, and then at some later point after age 60 remarry him without it affecting her widow's benefits," said Lowell Kepke, a spokesman for the San Francisco regional office of the Social Security Administration. "Congress put that in precisely to stop encouraging elderly couples from not getting married."

But the widow's benefits aren't the only reasons for the divorce. McCurnin and Bednar could see a tax advantage. A married couple filing joint tax returns can earn less before their Social Security benefits are taxed than two people filing separately.

To me, it is absurd that a committed and happily married couple must divorce for their financial survival.  As the population ages and in the absence of some type of healthcare reform, will couples be forced to divorce as a means of medical expense planning in order to protect their jointly accumulated savings? If so, the sad case of Mary McCurnin and Ron Bednar will be the tip of the iceberg.

Two years ago, Domestic Relations Law 177 was enacted, requiring parties to acknowledge their awareness that following the divorce they would no longer be eligible for medical insurance through their spouse on the basis of their marriage.

Recently, the laws governing equitable distribution were amended to require courts to consider the loss of medical insurance as a factor in awarding maintenance and distributing the marital property.

Unanticipated problems arose from the implementation of Domestic Relations Law 177 particularly because the statute mandated that all settlement or separation agreements, whenever executed,  contain specific language intended to insure that the parties were aware of the potential loss of health insurance coverage. The problem was that:

perhaps thousands of individuals who, after having lived for many years
subject to the terms of a stipulation/separation agreement relating to
their marriage, may now want a divorce. For each of these individuals,
it will be necessary that they find his or her former spouse and gain
his or her agreement to a modification of the stipulation/settlement so
that it complies with section 177 and therefore can be approved by a
judge. Quite apart from the logistical difficulties attached to this
obligation, which for spouses who have been separated for many years is
of questionable or no value, there will be additional financial consequences associated with reestablishing their attorney-client relation-
ships to re-execute stipulations or amend existing ones. Maybe more
importantly, the present statute is generating delays in the processing
of divorce actions - delays that could endanger the safety of litigants
where underlying issues of domestic discontent or violence exist.

To get around this problem, Domestic Relations Law 177 was repealed and a new law, Domestic Relations Law 255, enacted. Now, only agreements executed after October 9, 2009, must contain the statutorily mandated language.

To ensure that parties receive notice of the loss of medical benefits, the summons must not bear the notation that “once the judgment is signed, a party hereto may or may not be eligible to be covered under the other party's health insurance plan, depending on the terms of the plan.”
.
 

In the present political climate, health care and medical insurance coverage are hot button topics. But, for those going through divorce, medical coverage has long been a fertile topic for consideration.

It was for this very reason that a law was enacted two  years ago (and discussed here)  requiring parties to a divorce to acknowledge that following the entry of divorce that they would no longer be eligible to a continuation of medical benefits derived solely by virtue of their marriage. I suppose too many people were caught off guard without medical coverage following a divorce.

Effective September 21, 2009, the loss of health insurance benefits will  be be one of the enumerated factors to be considered in determining maintenance and equitable distribution. The other factors contained in Domestic Relations Law 236 Part B include,

a) the income and property of the respective parties including marital property distributed;
b) the duration of the marriage and the age and health of both parties;
c) the present and future earning capacity of both parties;
d) the ability of the party seeking maintenance to become self supporting and, if applicable, the period of time and training necessary therefor;
e) reduced or lost lifetime earning capacity of the party seeking maintenance as a result of having foregone or delayed education, training, employment, or career opportunities during the marriage;
f) the presence of children of the marriage in the respective homes of the parties;
g) the tax consequences to each party;
h) contributions and services of the party seeking maintenance as a spouse, parent, wage earner and homemaker, and to the career or career potential of the other party;
i) the wasteful dissipation of marital property by either spouse;
j) any transfer or encumbrance made in contemplation of a matrimonial action without fair consideration; and
k) any other factor which the Court shall expressly find to be just and proper.

While the consideration of the loss of insurance benefits is the first amendment to the equitable distribution law since it was enacted almost thirty years ago, I am not certain that this is a significant development.

From my experience, most attorneys have long recognized that the cost of medical coverage must be considered in settlement negotiations. No responsible adult can afford to be without health coverage and the insurance premiums can be potentially prohibitive.

In fact, the continuation of medical coverage under a “family plan” is a prime reason why many couples agree to a legal separation even after they sign a settlement agreement.

Even though the consideration of the cost or loss of medical insurance was not expressly provided for in the Domestic Relations Law, courts were always empowered to consider it under the catch-all "any other factor . . .  the Court found to be proper"  contained DRL 236.   The new law  makes consideration of the cost of health insurance mandatory.

In the middle of preparing for a complicated custody trial, I was contacted by Smart Money to discuss the divorce considerations of Jon and Kate. (I may have been the only person in America not to know who they are – fortunately, my wife filled me in.)

The article, in which I am extensively quoted, addresses many of the issues to be considered when contemplating divorce. The complexity of the issues is compounded exponentially because of the sheer size of Jon and Kate’s family.

Indeed, the child support calculation is simply “off the charts” as the child support guidelines do not even contemplate families of this size. Moreover, the overnight “celebrity” may skew the child support calculation which will be based on the couple’s reality television income, which I am sure, is substantially higher than their pre-television earnings.
 

Generally, one spouse is insured under the other’s employer sponsored medical plan. Ever wonder what happens if the insurer is not informed about the divorce? The New Jersey Law Blog provides the frightening details of one such case.

William Roseman, the Mayor of Carlstadt in Bergen County, New Jersey, and his former wife, were convicted of stealing health insurance benefits. One may ask, how do you steal heath insurance? The answer is by failing to inform your health insurance carrier of entry of the final judgment of divorce.

Most insurance policies require the insured to inform the insurance carrier of changes in circumstances, like divorce.

New York requires parties to a divorce to acknowledge that they will no longer be entitled  to  medical insurance by virtue of marriage after the divorce is granted (Medical insurance may be available under COBRA).

Much has ado has been made of the pilots being sued by Continental Airlines because they divorced in order to get partial distributions of their pensions. As reported in Freakonomics:

Continental Airlines is suing nine of its pilots, reports ABC News, claiming they faked divorces in order to draw down their pension funds before retirement. The airline became suspicious when some of the couples continued living together and all nine couples eventually reunited. Continental believes the pilots became worried about the safety of their pension funds, especially after seeing what’s happening at other airlines.

The airline claims that the divorces were shams. The couples all continued to live together and most did not even tell their friends and family about the divorces.

On the other hand, the parties were legally divorced. By getting divorced, even temporarily, they lost the rights afforded married couples, like for instance, the right to continued health coverage. If their tax year ended while they were divorced, the parties could not file joint tax returns.

In fact, the Continental Airline employees gambled that after making generous settlements, their spouses would re-marry them. Indeed, the parties would be hard-pressed to complain that the divorce settlement should be set aside because it was procured by their joint “fraud.”

Many marriage and divorce decisions are economically motivated. Some couples wed to obtain healthcare coverage. Others refrain from marriage to protect their social security status. Still others divorce as part of an elder care plan.

What these Continental employees did was lawful; the employer should not have the right to question the legitimacy of the employees’ marriage or divorce.
 

The Court of Appeals, New York’s highest court announced in a pair of cases that marital funds which were used to pay the separate obligations of one of the parties during the marriage could not be recouped in the divorce. This is a far reaching decision because, for instance, a second wife cannot now recover from her husband marital funds used to pay his first wife spousal maintenance or child support.

In short, the divorce court should only consider the assets and liabilities existing at the time of the divorce.

The Court in Mahoney-Buntzman v. Buntzman declared that:

Courts should not second-guess the economic decisions made during the course of a marriage, but rather should equitably distribute the assets and obligations remaining once the relationship is at an end.

The Court recognized that if a trial court were to scrutinize every transaction during the marriage, the result would be a cumbersome review by a court, forced to review the reasonableness of every expenditure, measuring the benefit to each of the parties. Instead, the Court declared that “The parties’ choice of how to spend funds during the course of the marriage should ordinarily be respected.”

This same conclusion was reached in Johnson v. Chapin, decided the same day.

In reaching this conclusion, the Court noted that:

There may be circumstances where equity requires a credit to one spouse for marital property used to pay off the separate debt of one spouse or add to the value of one spouse's separate property . . .Further, to the extent that expenditures are truly excessive, the ability of one party to claim that the other has accomplished a "wasteful dissipation of assets" (DRL 236 [B][5][d][11]) by his or her expenditures provides protection.

In other words, questionable or wasteful expenditures may be examined, child support and maintenance payments may not.

As I predicted in this blog, same sex divorce has come to New York. A Supreme Court judge in Broome County has granted a same-sex Binghamton couple a divorce.

As pointed out at Pressconnect.com, this divorce is a bit ironic.

New York doesn't allow same-sex marriages, but state Justice Molly R. Fitzgerald allowed Lauren Wells-Weiss to divorce her partner, Shari Weiss. The two married Aug. 13, 2004, in Toronto, after a private religious ceremony before family and friends in Ithaca in 2001.

The case is paradoxical, said both women's attorneys, because in their opinion the judge recognized the lesbian couple was married, although New York state law doesn't allow same-sex marriages.

New York will recognize as valid, marriages which were legal where they were solemnized, even if they would not valid if the marriage took place in New York.

Although New York will not allow same sex couples to wed, in the past year, there has been a line of cases which have recognized, as valid, same sex marriages lawfully performed in Canada and Massachusetts. In these cases, courts have extended to same sex couples legal rights previously only available to lawfully wed couples.

My only disappointment is that I had hoped that one of the same sex divorce cases I am presently working on would be New York’s first. Perhaps I will have to take consolation in representing litigants in the first New York City same-sex divorce.

After the bitter fight to acquire valuable assets in your divorce, you may not want to face your own mortality, but should you die and your ex is still designated as the beneficiary of your life insurance or will, all the litigating and negotiating will have been in vain.

Alan Nye in the Maine Divorce Blog offers some sage advice on post divorce estate planning:

1.  Change all the beneficiary designations on your life insurance policies, 401(k) plans, IRAs, and any other accounts that may have had your former spouse designated as a beneficiary.
2.  Revise your will. Make sure that your children, other family members, not your ex, take under your will.
3.  Close any joint bank accounts and credit cards. Make sure that your ex does not have access to credit lines that you will be liable to pay.
4.  Revise your living will and revoke any powers of attorney that you gave to your ex.

Obviously, you should consult with your attorney, tax adviser and financial planner to ensure that your plans are made in an efficient manner.
 

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.
 

Last week’s article in the NY Times about how difficult divorce has become as a result of the housing crisis has stirred up quite a bit of debate.

The Times notes that:

In a normal economy, couples typically build equity in their homes, then divide that equity in a divorce, either after selling the house or with one partner buying out the other’s share. But after the recent boom-and-bust cycle, more couples own houses that neither spouse can afford to maintain, and that they cannot sell for what they owe. For couples already under stress, the family home has become a toxic asset.

In LadyBlog, Theodora Blanchfield opines that the difficulty in liquidating the marital home is a good thing. She writes:

. . . I think any other obstacle to divorce is actually a good thing. Combine that with the housing crisis, and you might actually have people thinking twice about buying a home they can’t afford or marrying someone they’re not in love with. For being a single girl living in New York City, it might be a little Pollyanna-ish for me to say this, but when I marry, it’s going to be forever, and when I buy a house it’s going to be something I can pay off before I die.

This is a wonderfully optimistic view when entering into a marriage or even when purchasing a home. However, when marital difficulties arise or when one spouse unilaterally decides that he/she no longer wants to be married, any barrier to divorce has the effect of imprisoning the parties.

One of the commentators to Mr. Blanchfield’s post best sums up the short-sightedness of her reasoning that the present economic conditions are somehow good for marriage.

When my wife decided a year ago that, after almost six fantastic years, she’d rather not be married anymore, we decided to try and fix things. It didn’t work, and the housing crisis hit. Now, although we have no difficulty paying our mortgage, neither of us can afford to move out.

I thought I was marrying for forever too, and three years ago our house looked like a pretty good investment. We got a fixed rate so we were never at any risk of foreclosure. Now I am stuck living in a house with a woman who no longer loves me.

Mr. Blanchfield ignores the simple fact that barriers to divorce do not compel a couple to resume any part of the martial relationship. The obstacles merely lock the parties in a dead relationship and prevent them from moving on with their lives. The inability to sell the marital home or to untangle their finances imprisons an estranged couple under the same roof. How is this a good thing?
 

In the spirit of the upcoming holidays, Newsweek offers guidance to divorced parents on how to make the holidays better for their children.

Admittedly, the holidays are the most difficult and painful times for families broken apart by divorce. Both parents want to maximize their time with their children. Even the best intentioned parent may be tempted to play the game of one-upmanship by giving bigger and more expensive gifts to the children in an attempt to buy their love. All of this leads to increased stress and conflict at a time that should be joyous.

But, there are things that you can do to make the holidays easier for the children. According to Robert E. Emery, professor of psychology and director of the Center for Children, Families and the Law, the challenge is to view and conduct your behavior from the children’s perspective.

Professor Emery offers these tips, with my comments included, to make the holidays more bearable:

1. Remember that the holidays are not all about you.

”Encourage the children to have a blast with their other parent, even if you can't stand the prospect of being alone.”

2. Get into the spirit of the season.

”This is a time of giving, forgiving and fresh starts. Turn Scrooge's emotional lessons about holidays past, present and yet to come into New Year's resolutions about letting go of anger and treasuring all you have—despite all you have lost.”

3. Love means far more than money.
 

Your time, love attention and emotional presence are the best gifts you can give your children. You do not have to be physically present to “be there” for your children. .
 

4. The holidays are not a competition with your ex, or for your children.

5. Communicate and coordinate with your children's other parent.

Communication and planning will ease transitions and reduce conflict and redundancy.
 

6. Celebrate with your children's other parent.

Children may feel guilt abandoning one parent during the holidays. Do a good deed – for the sake of the children – and include the other parent; maybe next year the favor will be returned.
 

7. Set up a plan for next year now.
To avoid last minute disappointment or negotiations, plan for the holidays in advance; if there is a holiday schedule try to stick to it, but be willing to amend it as needed.

8. Establish traditions with your children.
Establish new traditions with your children. After all, it is the rituals and traditions, passed on from generation to generation that make holidays special.

I wish you all a healthy, festive, joyous, peaceful, stress-free and prosperous holiday season.
 

As the economy continues to falter, there are reports of a couple of distinct trends in family law cases: many couples are putting off their divorces and, if the couples are going forward with their divorces, they doing so without legal representation.

NBC News is reporting that “more distressed couples are putting off divorce because the cost of splitting up is prohibitive in a time of stagnant salaries, plummeting home values and rising unemployment.”

In more prosperous times, the marital home was the largest asset to be distributed. When it was sold, the proceeds used to be enough to allow both parties to have adequate funds to finance their fresh start. “But the disastrous real-estate market is leaving many homeowners owing more on their mortgages than their properties are worth — turning what would normally be their biggest marital asset into a liability.”

Today, with housing prices so low, it’s again cheaper for couples to “work out your differences now,” said Clinton J. David, a lawyer specializing in complex business transactions in Dallas.

Instead of you and your soon-to-be ex-spouse fighting over how to divide up the profits from the sale (of a home), you could actually, unfortunately, end up fighting over who’s going to pay off the lender because the loan on the home is actually more than the value.

For those people who do want to divorce, more people are representing themselves in court, according to the Associated Press. Many pro se litigants represent themselves in court so as to avoid the cost of attorneys.

But, there are inherent risks in representing yourself in court.  Pro se litigants are unfamiliar with rules of procedure, the rules of evidence, and standards like the burden of proof.  As a result, cases may not be properly presented in court, with devastating consequences, like the loss of custody of children.

I am awaiting reports of a third trend – reports of increased filings for modifications of existing child support and maintenance awards. It will be interesting to see how the courts will handle request to reduce  support orders in view of the systemic meltdown of the economy, the loss of employment and the decline is stock portfolios and real estate values.
 

The Divorce Blog has reported that a same-sex couple, wed in Massachusetts, can divorce in New York.

This is consistent with New York’s evolving policy of recognizing same sex marriages entered into outside of the State of New York. I have written about New York's recognition of same sex marriage here.

While New York will recognize a same sex marriage lawfully performed in a jurisdiction other than New York, same sex couples cannot wed in New York.

I am a bit shocked that it that following the decisions in Martinez v. County of Monroe, and Beth R. v. Donna M., that it took so long for someone to bring a same sex divorce case. The only question is now that the same sex divorce cases began, when will the floodgates open
 

The Divorce Blog highlights the raging debate over “No-Fault” divorce; is no-fault divorce good or bad idea?   As I discussed before, New York is the only state without a no-fault grounds for divorce and proposals for it  are again before the state legislature.

Quoting a Newsday feature, the article voices the concern that no fault divorce is somehow “dangerous to women and children.”

No-fault divorce allows couples to end a marriage without assessing blame.   Neither spouse has to prove or accuse the other of marital fault.   Likewise, no-fault divorce prevents one spouse from seeking to take advantage of the other in cases where neither party has a cognizable grounds for divorce.

In the end, divorces become less acrimonious and less expensive as marital fault need not be considered.

The criticism of no fault divorce is that it would, somehow, put victims of domestic violence at a disadvantage. However, the criticism misses the point. The abused victim would no longer have to prove (at a needless and costly trial) that they are vcitims of  "cruel and inhuman treatment” in order to terminate the marriage. Iff, after trial, marital fault has not been established, the abusive relationship is not terminated. Doesn’t this put the abused spouse at far greater risk?

The other concern, that the moneyed spouse could seek a no fault divorce, leaving the dependent spouse to fend for his or herself, is also unfounded. The current proposals for no fault divorce require all issues (i.e., grounds, equitable distribution, and child support) to be resolved prior to the entry of a judgment of divorce. If a trial is necessary, the parties could focus all of their resources on issues other than fault.

 

The New York Times ran a front page story detailing how the availability of medical insurance has become a major consideration in the decision to divorce or to wed.

In a poll conducted this spring by the Kaiser Family Foundation, a health policy research group, 7 percent of adults said someone in their household had married in the past year to gain access to insurance. The foundation cautions that the number should not be taken literally, but rather as an intriguing indicator that some Americans “are making major life decisions on the basis of health care concerns.”

The issue of medical coverage has long been a consideration in divorce. In fact, many couples, after negotiating their settlement agreements, delay seeking an immediate divorce and, instead, opt to divorce on the basis of their living separate and apart for a year pursuant to a written separation agreement. The one year separation allows a party who would otherwise be without access to medical insurance to remain eligible for medical coverage on the basis of the marriage. Some couples put off the divorce for even more than a year for this very reason.

Amplifying this consideration, New York requires parties to acknowledge that they are aware that they will no longer be allowed to receive health coverage under their former spouse's health insurance plan once the divorce is granted.

Following the divorce the parties may be eligible to continue medical coverage under COBRA (which can be prohibitively expensive) or purchase insurance on their own
 

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.

 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 attorney can take much of the burden off of the litigant, reduce the length of the case, and hopefully negotiate a settlement where everyone wins and nobody goes to court.
• You wouldn't perform your own surgery, why would you try to take on the court by yourself. Divorce lawyers are here for a reason.
• Whatever your argument, the judge has heard it before. The attorney knows how to pick the battles and keep you on the judges good side.
• Family law is not like other areas of the law. A skilled negotiator is superior to a combative lawyer or litigant who wants to fight about everything.

When an action for a divorce is commenced, it is often the case that most of the marital assets available for the payment of legal fees are possessed or controlled by one of the spouses, usually the husband. In order to ensure that the parties will have equal access to skilled legal representation, the Domestic Relations Law authorizes awards of interim counsel fees to the nonmonied spouse during the course of the litigation. Because of the importance of such awards to the fundamental fairness of the proceedings, we hold that an application for interim counsel fees by the nonmonied spouse in a divorce action should not be denied — or deferred until after the trial, which functions as a denial — without good cause, articulated by the court in a written decision.

appropriate to prevent the more affluent spouse from wearing down or financially punishing the opposition by recalcitrance, or by prolonging the litigation'" If the playing field were not leveled by an award of interim counsel fees, "a wealthy husband could obtain the services of highly paid (and presumably seasoned and superior) matrimonial counsel, while the indigent wife, essentially, would be relegated to counsel willing to take her case on a poverty basis.

It is impossible to say just how many people are blogging about divorce, but the percentage of Internet users with personal blogs has quadrupled in five years, according to Pew. Mary Madden, a senior researcher with the Pew Project who specializes in online relationships, said that in emotionally charged times, some people go to the Web.

The sharp downturn in the market is taking a similarly painful toll on couples who are breaking up. But now it's not that they can't afford their next home, but that they can't get rid of the old one. . .

"The housing market is having a major impact on divorce cases," said Stephen Ruben, a certified family law specialist in San Francisco. "If a house doesn't sell, it has a major impact on cash flow for child support, on where people live, on future taxes.

• What will trigger the sale of the home?
• Who pays the mortgage?
• Does paying the mortgage increase the payer's equity?
• Who gets the mortgage interest deduction?
• Who is responsible for the maintenance and repair of the marital home?

The adulterer must be willing to disclose all the details of his affair and agree to new degrees of openness, says Rick Reynolds, founder of the Affair Recovery Center in Austin, Texas.****

It’s not always just the spouse who committed the transgression who has to change after an affair if a marriage is to recover.
Often it’s difficult for the betrayed party to consider what he or she could have done that may have helped lead to the affair, says Meg Haycraft, a Chicago couples specialist who founded a practice called TWOgether. That’s not to say that someone can blame their partner for an affair, she added.  ****

Reynolds] counsels the spouse who cheated to answer any question his or her partner has. But he also sets a date when the questioning must end.

Initially decided to return to my maiden name and asked for it to be changed at my final divorce hearing. But then something strange happened. As the months passed, I continued to use my married last name, putting off changing my driver's license and credit cards. Something just did not feel right about changing my name back to the name I once used long ago. I felt like I wasn’t that person anymore, yet I also did not feel comfortable using my married last name. I certainly was not the same person who used that name either.

In the end I decided to give myself a new last name. One that I choose. I shortened my married last name and gave myself a brand new identity. I went to court and legally changed my name. It felt right and it was empowering to begin my new life after divorce with my own chosen identity, not the name I was born with and not the name I got from being married.

There are several issues to consider when deciding whether or not to keep your married name after a divorce. Here are few:

1. Your children. Do you want to avoid confusion at school by keeping the same last name as your kids?

2. Paperwork. Changing your name means changing your driver's license, bank accounts, credit cards and countless other documents. Expect to spend time and energy taking care of this.

3. Have you established yourself professionally with your married name? If so you may not want to change it.

In the end, make sure it is your own decision to change or not change your last name. Don't give into pressure from your ex, who may object to you using your married name. It is perfectly legal to continue to use your married name after a divorce. If you no longer wish to use your married name, then make sure you are comfortable going back to your maiden name. If not, you may want to do like I did and create your very own new last name.

1.Failing to be prepared with copies of all relevant financial and legal documents;
2.Failing to obtain financial advice as part of the divorce. Parties often fail to consider impact of taxes on the assets to be distributed. Other assets need to be appraised;
3.Failing to sell the marital home when you can ill afford to remain in it;
4.Failing to explore settlement or other avenues of dispute resolution and, instead, rushing into court; and
5.Failing to untangle assets and debts acquired during the marriage.

• Withdrawing marital funds from joint bank accounts and transferring the money to accounts in your sole control. This transfer will result in the aggrieved party running into court to obtain a restraining order preventing the funds from being squandered.
•  Running up credit cards charges for which the other spouse is primarily liable. This can be prevented by closing joint lines of credit when the divorce is commenced.
•  Refusing to pay any household bills or send any support until forced to do so by court order. This is one of the steps in a routine called "Starve Out The Other Spouse". The goal is to get the other spouse in a financial position where he or she will settle the case out of financial desperation.
•  Refusing to speak with your spouse about anything, including arrangements for him or her to have parenting time with your children. This falls into the category of a tactic used by some lawyers to create conflict, create issues that don't need to exist, increase legal fees and wear the other side down. It can also cause a serious break in parent-child ties if the non-custodial parent doesn't get to see the children because he or she can't set up any parenting time.
•  Filing false reports of domestic violence intended to have your spouse barred from the marital home.

On Thanksgiving, as well as other holidays, most of us have an ideal of how the day should go. We want the house to look perfect, the children to be cooperative, the food to be delicious and plentiful, the relatives to behave. Yet some disappointment is inevitable. For one thing, holidays involve change in the daily routine and even minor changes can be stressful.

For some, the holiday means face-to-face confrontation with major changes. What is supposed to be a celebration seems more like a painful reminder of what was lost and what might have been. Perhaps this is the first year your daughter will be visiting her in-laws out of state. There may be an empty chair at the table because a family member is serving overseas or is in the hospital. Maybe this is the first Thanksgiving after a divorce or a loved one's death.

“Are you a fighter? I need a bulldog on this…” or “I really need someone who is collaborative…can you work with my ex’s attorney?”

Telling your children about divorce is challenging, but essential. According to Gary Neuman, a psychotherapist and divorce expert who appeared on the Oprah Winfrey Show a few weeks ago, “the way children are told about their family breaking up is a seminal moment that no child forgets.”

So, how do your tell your children about divorce without scaring them for life? Gary Neuman recommends you do it by following these basic rules:

•“Both parents should be present to tell the children together - with the main message being, you, the children, are still our priority.
•It should not take more than 45 seconds.
•Practice what you’re going to say, before blurting out things that can hurt forever.
•Never disparage the other parent, because it makes your child feel guilty about loving them.”

• Your children are not divorcing your spouse, only you are. If your spouse is bad, imperfect, or completely flawed, let the children discover that themselves. You do not have to flag your spouse’s faults for them.
• Do not make the children choose sides. To the contrary, children should be encouraged to have a relationship with both parents.
• Tell the children, particularly if they are young and may not understand, that nothing they did caused the divorce.
• Re-assure them that both parents love them.

As the police tell it, Cassandra Reynolds pulled up in the driveway of her ex-husband’s home in South Windsor to pick up a few belongings.

A dispute ensued. Her ex-husband’s golden retriever approached her, so she kicked it, the police said. The dog yelped. Ms. Reynolds was arrested.

That was on Sept. 23. The next day, a Superior Court judge ordered Ms. Reynolds, 39, to stay away from her ex-husband and his new wife. The judge also ordered her to stay at least 100 yards away from Riley, the golden retriever — or face up to five years in prison and a fine of up to $5,000.

•Clients know the total cost up front, which enables them to determine prior to retaining the attorney whether or not they can afford his/her services and to budget for the attorney's fees and costs.
•Clients have another basis upon which to compare attorneys, both in the manner they charge for their services (fixed fee vs. hourly) as well as the amount charged ($X vs. $Y).
•Clients never end up in fee disputes with their attorneys, because all fees were negotiated and agreed upon before the representation began.
•This method encourages open communication from the client to the attorney. In hourly billing situations, clients sometimes hesitate to provide information to the attorney because they know that they will incur fees and costs for doing so.
•Clients have a higher level of trust with their lawyers, which results in a better working relationship, which frequently yields better outcomes in the clients' cases.
While a flat fee may be appropriate in a matter where the legal representation is somewhat limited in scope, for instance, representing a litigant in an uncontested divorce. At flat fee may be inappropriate in a litigated matter or in a case where the issues will have to be extensively negotiated.

Cruel and inhuman treatment" (or something similar) is a common legal cause of action in the divorce law of many states. In states without no-fault divorce, one needs (or needed) a legal cause of action in order to file for divorce. One of those causes of action is "cruel and inhuman" treatment.

In December of 2005, Michael and Dina Lohan signed a separation agreement. The fight had been heated and [Justice Robert] Ross had shown little sympathy for Michael. In August of that year, Ross wrote in a decision that "for all the defendant's professed interest in his children, his criminal ping-pongs back and forth between cases reflect extraordinary selfishness and gimmicky schemes."

For Dina, he had only praise, saying the care she gave to Lindsay was "a parent's dedication and love for a child."

So perhaps it was no surprise that when Michael wanted to spend more time with his two youngest children, he decided to try his luck before another judge. When he was released from prison in March after serving nearly two years on assault and other charges, Michael filed a petition in Family Court for expanded visitation.

In June, Dina filed a new action for divorce in Supreme Court.

The research did not completely eliminate all genetic factors, however. According to D'Onofrio, about 66 percent of the increased risk for divorce appears to stem from the simple fact of a person's parents having been divorced. The remaining 34 percent of the risk seemed to be tied to genetic factors, as well as other factors affecting parents and children. . .

The study is unique, the researcher said, because it is based on data from more than 2,300 twins, their spouses and their adult offspring. In other words, many of the younger people in the study are actually cousins who are also "genetically half-siblings," because their aunt or uncle shares their parents' genes.

So, to help separate out the effects of genetics from family environment, the Australian team compared the marital success of cousins who grew up in stable families (no divorce) against cousins who came from families split by divorce.

Clearly there are a lot of Americans with time on their hands and a few extra pennies in their pocket. And whose to blame them for wanting to part nicely with their past

For marketers this serves as a revelation: the wedding industry is a gloriously profitable one. Why not create a divorce industry—tailored to boomers who are going through the difficult but ultimately freeing divorce passageway and might appreciate a little levity. After all, it’s good to bury the hatchet.

Continue Reading

• Alimony is taxable and deductible. The person who provides alimony can claim the payments as a deduction, while the person who receives it can avoid a large end-of-year tax bill by paying estimated taxes during the year. Unlike alimony, child support is not deductible or taxable.
• Who claims the children? The parent who has custody of a child usually can claim the child as a dependent. However, with the custodial parent’s consent, the parent without custody can claim the child. (The custodial parent may still be able to claim certain tax benefits related to the child, including head of household filing status, the Earned Income Tax Credit, and the child-care credit.)
• Who is a head of household? There are several factors for determining the head of a household. A few include being considered “unmarried” on the last day of the year, having children or other dependents who live with you, and paying more than half the cost of providing a home for dependents. Taxpayers should consult with a tax professional to determine if they qualify for head of household status.
• Divorce, annulment and legal separation are considered the same by the IRS for tax purposes. The way a tax return is affected by the situation depends on how the decree is worded, and in cases where state and federal law differ, the IRS will side with the federal government.

I have written a lot on this blog, about the fact that New York does not have a “No Fault” grounds for divorce. What that means is that in New York, in order to obtain a divorce, a party has to allege and prove grounds in order to obtain a divorce.

So, what are the grounds for divorce in New York  Domestic Relations Law §170 sets forth the six grounds for divorce. Of the six grounds, four are fault based. This means meaning that one of the spouses has done something wrong. The four fault based grounds for divorce are:

1. The cruel and inhuman treatment of the plaintiff by the defendant such that the conduct of the defendant so endangers the physical or mental well being of the plaintiff as renders it unsafe or improper for the plaintiff to cohabit with the defendant.
2. The abandonment of the plaintiff by the defendant for a period of one or more years.
3. The confinement of the defendant in prison for a period of three or more consecutive years after the marriage of plaintiff and defendant.
4. The commission of an act of adultery.

Perhaps the most common fault based ground for divorce is “constructive abandonment.” A constructive abandonment occurs when one spouse refuses to have sexual relations with the other, without excuse or justification, for a period of one year preceding the filing of the action for divorce.

The two non-fault grounds are based upon a separation of, at least, one year, pursuant to a judgment of separation or written separation agreement. It is important to note that a separation in the absence of a judgment or an agreement executed with the required formalities will not be a basis for a divorce.

A wife was granted $184 million as equitable distribution after trial in a Chicago divorce action. This equitable distribution award is reported to be the largest in history.  

Charles Meyer reports in the Pennsylvania Law Blog that  “this is a rags to riches story, as the parties came to the United States from Eastern Europe with only $500.  Husband became a huge success in the energy business, and later sold his business for several hundred million dollars.

At issue in the case was the wife’s contribution to the wealth. 

David Sarnacki writes in Domestic Diversions that:

They would walk together after dinners, and Michael would share details of his work, looking for empathy, advice or merely an open ear,” Rosenfeld wrote in court filings. “For many years, their marital partnership flourished. Michael provided sustenance and security, and Maya provided love, support, advice and counsel

While the numbers  may seem obscene, the result seems just.   The reported facts reveal that the marriage was a true economic partnership. All of the wealth was created during the long term marriage through the joint efforts of the couple. It seems only fair that the marital property be divided equally.   Quite frankly, even if the division of marital assets should not have been equal, would a 60-40 split  of  the nearly $400 million marital estate really made that much of a difference to these parties?          

It is, disappointing that this couple did not follow the lead of Blixseths, who divided their fortune amicably over a bottle of wine.  

The Appellate Division, in the aptly named case, Gross v. Gross, reversed a trial court’s grant of a divorce based upon the husband’s cruel and inhuman treatment of the wife. 

In reaching this decision, the appeals panel reaffirmed that in marriages of long duration, a high degree of proof of cruel and inhuman treatment is necessary to make out a cause of action.   In this case, Mrs. Gross claimed that Mr. Gross forced himself on her sexually ramming her up against the bathroom wall. Perhaps, if the parties had not been married for thirty seven years, this sexual assault may have been a sufficient basis for a divorce.

Not to beat a dead horse, but if New York had a no fault divorce, it would have been unnecessary to measure the amount abuse needed to sustain a cause of action for cruel and inhuman treatment.

"Cruel and inhuman treatment" is one of the six grounds for granting a divorce in New York. Just what type of conduct constitutes "cruel and inhuman treatment." It is defined by Domestic Relations Law § as:

treatment of the plaintiff by the defendant such that the conduct of the defendant so endangers the physical or mental well being of the plaintiff as renders it unsafe or improper for the plaintiff to cohabit with the defendant.

A decision from the First Department yesterday (Gross v Gross, 2007 NY Slip Op 04362) illustrates and reminds that obtaining a divorce on cruel and inhuman treatment is not necessarily an easy thing to do, and that somewhat isolated incidents involving physical altercations is not necessarily enough. The evidence at trial was as follows.

Plaintiff wife was asked at trial whether defendant had ever "physically force[d] himself on [her] sexually." In response, plaintiff testified that "I would have to say yes. It's only one time that, really where he hurt me." Plaintiff explained that defendant "[r]ammed [her] up against the wall" in the bathroom of their residence. Plaintiff did not elaborate in any other way about what she meant in stating that defendant had "force[d] himself on [her] sexually." Plaintiff offered no evidence that she had sustained any injuries as a result of this incident. In fact, she testified on cross-examination that she did not suffer any physical injuries as a result of the incident. Plaintiff also testified that defendant, on many occasions, "physically grabbed [her]." When asked to describe how defendant "grabbed" her, plaintiff stated: "[h]e'll grab me, he'll pull me down the hall, he'll block me so I can't leave the room, throw me on the bed, push me against the wall." Again, no testimony was elicited from plaintiff that she sustained any injuries as a result of defendant's conduct.

The Supreme Court had granted the divorce. However, on this evidence, the First Department reversed and dismissed the complaint. The Court noted that the parties had been married for over 37 years, and that under such circumstances, a "high degree" of proof of cruel and inhuman treatment was required. With respect to the plaintiff's testimony, the Court stated that it could include conduct ranging from the criminal (e.g., forcible rape) to the merely obnoxious. But it stated that reprehensible and highly offensive behavior is not necessarily sufficient to establish the cruel and inhuman treatment. Here it found that the plaintiff's uncorroborated testimony regarding unwanted physical contact was vague and general, and there was no evidence as to the effects of defendant's conduct on her physical or mental well-being. The Court further noted that the parties continued to reside together in the marital residence through the trial, they were able to talk to each other in a civilized manner, have dinner together every night, go out for meals and to the movies, and attend social functions.

The lesson here is clear that if there is not a lot of evidence of cruel and inhuman treatment another ground for divorce should be pleaded

A billboard ad depicting a headless male torso and tanned female cleavage heaving forth from a black lace bra with the caption “Life is Short, Get a Divorce” is getting a lot of reaction on the blog-o-sphere today. 

This ad, placed by a Chicago divorce firm (according to ABC News-an all female firm) is properly garnishing criticism.   While an attorney advertising his/her services is not objectionable, inducing (or “seducing”) a client to divorce is. While it is doubtful that a picture of a scantily clad woman would alone cause a man to leave his wife, it is not the divorce lawyer’s job to tempt the client by showing him that “grass may be greener” outside of marriage.

This ad does not promote the legal profession, highlight the firm’s advocacy skills or evidence the firm's legal knowledge. It does not even describe what services the law firm offers. Instead, it plays on sex and demeans the profession. It is precisely this type of undignified and unprofessional ad that caused the New York Court’s to regulate attorney advertising.

Unfortunately, the ad worked. The ad is getting noticed and the law firm’s is getting publicity.

Legislation to shorten the one year separation grounds for divorce to three months was approved by the Judiciary Committee of the New York State Assembly last week.

The current law requires parties to leave separate and apart pursuant to a written agreement for one year in order in order to state a grounds for divorce.   The new law would shorten this period to three months.

Critics have aptly pointed out that this is not a “no-fault” divorce, in which the parties would only need allege that the marriage has irretrievably broken down with no prospect of reconciliation.   Instead this proposal requires that the parties enter into a written agreement which resolves all the issues of the divorce including equitable distribution, child custody and support.

This bill is not, however, a substitute for no-fault divorce.   A no-fault divorce is needed for those cases in which there is an absence of marital fault (e.g., no one is guilty of adultery, abandonment or cruel and inhuman treatment), and the other issues of divorce (equitable distribution, child custody, etc) require a judicial determination.

In a fascinating article published in the New York Times, Tyler Cowen, a professor of economics at George Mason University and co-author of a blog, the Marginal Revolution, explores the benefits of what he terms, unilateral divorce.   His conclusion, unilateral or no-fault divorce leads to happier but perhaps, less committed marriages.

In the United States, the availability of divorce has increased with unilateral divorce, which allows either member of the couple to dissolve the union. The change has been associated with lower rates of female suicide and domestic violence, and fewer wives murdered by their husbands. Unilateral divorce shifts the bargaining power to the person who is getting less out of the marriage and thus is most likely to leave. The partner getting more from the marriage has to work harder to keep the other person around, which can be good for the marriage and good for the couple. In other words, unilateral divorce benefits victims and potential victims.

When unilateral divorce was adopted, divorce rates rose sharply in the two years that followed, reflecting a pent-up demand for divorce. But after 10 years had passed, the divorce rate went back to normal or in some cases, compared with states without unilateral divorce, it had fallen further.

In fact, the divorce rate for married couples peaked in the United States in 1979, when it was 22.8 per thousand married couples per year. Since then it has continued to decline, reaching 16.7 divorces per thousand married couples in 2005.

If matrimony as an institution has declined, it is because fewer people are marrying in the first place. Marriage is at its lowest rate in recorded American history, and marriages are shorter than before. If fewer weddings mean fewer divorces, individuals are probably making better matches. Perhaps there should have been fewer marriages in the first place.

One group more likely to be married today than ever before is Americans over age 65. Men are closing the life expectancy gap with women, and that means fewer widows, a comforting thought. The elderly are the most likely to require marriage for assistance with medical problems, not to mention sex and companionship.

Consistent with economic reasoning, marriage is growing among groups who benefit from marriage the most. Furthermore, the women least likely to remarry are highly educated with a high income, namely those who are best able to handle single life. Women with the least resources are the most likely to remarry.

Unilateral divorce does make for less committed marriages. In states that allow unilateral divorce, a spouse is 10 percent less likely to be putting the partner through school. The obvious fear is that once the costly education is over, the beneficiary will leave the marriage. In states with unilateral divorce, adjusting for the relevant demographics, a couple is 6 percent less likely to have a child. Again, couples seem to be making decisions with the prospect of divorce in the back (or the front) of their minds. That may be one reason for the surge of female interest in higher education and advanced degrees.

Often, earlier approaches to marriage were based on the idea of a division of labor; the man would earn the income and the woman would take care of the household. But as female earning power increases, this arrangement makes less sense. Men and women are more likely to pair off on the basis of similar education, similar interests and similar tastes in consumption. In other words, modern marriage is more fun.

And what about the children? Don’t they suffer in happiness and future prospects from divorce?  Maybe so, but Mr.  Wolfers and Ms. Stevenson do not think the question has received a final answer. To be sure, it is better for a child to have happily married parents, but when the family is dysfunctional anyway, we don’t know whether divorce harms the children. In any case, the number of children in a given divorce is, on average, declining. In 1968, the average divorce involved 1.34 children. By the 1990s, this had fallen to an average of less than one child per divorce. Since many people put off having children, and the average marriage is shorter, many divorces arrive before the children do.

In a case where a husband abandoned his wife and children and failed for nine years to pay any child support, a Court ruled it was appropriate to set off the husband’s unpaid child support obligation against his interest in marital property.   Since the husband failed to pay child support for nine years, his interest in the martial home was set off against the amount of unpaid support. As a result, the Wife was entitled to full possession and title to the marital home. 

 In the case Pritchett v. Pritchett ( N.Y.L.J. 4/9/07(subscription required), Justice Darrell L. Garvin ruled that the husband’s abandonment of his family and failure to contribute any child support created a “substantially unequal burden on the [Wife] to the benefit of the [husband]. This benefit of the non-contributing spouse constituted an unjust enrichment which should be rectified.”

Applying the child support guidelines to the Husband’s income at the time he abandoned the family, the Court calculated the amount of unpaid child support arrears and the husband’s share of the child care, educational and medical expenses even though the Wife had not previously obtained an order requiring the payment of support.   

Since the child support arrears exceeded the value of the Husband’s equitable interest in the marital home, the Court transferred title to martial home to the Wife. 

To this must be added duplicate items for the children: when the bicycle goes to one house, a second one will have to be purchased for the other house because neither parent will want to be seen as less generous and caring than the other, and this is true for all items, essential and non-essential alike; clothing, beds, towels, doll houses, video games, school supplies, and so on, plus the time and money required to replace, repair and upgrade these items. Certain expenses, such as daycare costs and doctor visits, may be divided more or less equally (assuming both parents are willing and able to pay, which is oftentimes not the case), but for daily living expenses, a safe rule of thumb might be to count the number of kids you have and multiply by two—then add the costs of a second home.

And if, for example, the parents live an hour apart and transfer their children back and forth thrice weekly, that adds up to another thirty hours of driving time per month, plus gas, and related expenses, not counting delays, schedule changes, forgotten items, extra pick-ups and drop-offs, and extracurricular activities that were previously managed through some sort of division of labor, but must now be done separately. In varying degrees, this holds true for most other household activities—efficiency is lost when spouses must function without the support of each other—and as the old saying goes, time is money.

This change in our financial picture, however, does not stop at the home front, but reaches into the workplace as well: the U.S. government reports that half of all single mothers receive public assistance, while divorced men earn between 10% and 40% less than their married counterparts having similar educations and backgrounds. It should come as no surprise then that at the age of retirement, divorced couples have a significantly lower net worth than those who remained married. After divorce, the yellow brick road quickly loses its luster, and life is rarely easier.

Of course, here we’re just talking about money matters, and as we all know, divorce involves a lot more than financial losses. Divorcés also experience significantly higher numbers of early death of almost all the major diseases, as well as higher rates of in and out-patient psychiatric care, suicide, physical abuse, accidental injury, and drug and alcohol use. But those are other issues. Here we’re focusing only on dollars and cents. One hurdle at a time.

In summary, although divorce leaves us in a highly emotional state, we should be careful not to let those emotions rule our thinking, particularly those that blind and bind us to the grim consequences of such decisions. Before making that call to an attorney, or presenting your spouse with your decision to leave, make sure that you’ve taken the time to ask yourself if divorce is really worth the financial price you will pay. If it is, then fine, you can move on to the other matters mentioned above. But do you homework first—and make sure that your pencil is sharp.

With a dedicated staff which includes a parenting coordinator and a family services coordinator, the Court is able to refer litigants to alternate dispute resolution programs, counseling, and parent education programs. Under the auspices of the Court, the parties are encouraged, for instance, to develop parenting plans.

According to Justice Robert Ross, the supervising judge of Nassau County’s Matrimonial Center, “The non-adversarial forum for parents to resolve their custody disputes, often expedites the resolution of a contested matrimonial cases.”

The New York Law Journal reports that the pilot program has been quite successful. Since the program was implemented five months ago, 16 of the 20 cases assigned to the program have settled.  The grateful litigants have written thank you letters to the court.

The Nassau County Courts should be commended for looking “out of the box” for a way to efficiently resolve divorces. Other jurisdictions, like New Jersey, have made parent education mandatory at the outset of a divorce. But in those cases where custody is not in issue, mandatory participation is a waste of time. 

What seems to make the Nassau County program effective is that it can be specifically tailored to the needs of the litigants. Still the question remains, will this program, which was limited to twenty cases, be as effective when it is expanded to the almost two thousand contested divorces filed in Nassau County last year?    

The idea of marriage and divorce is not what it was years ago for many people. On Lawyer 2 Lawyer, we look at divorce law today and explore the world of marriage and how it has changed over the years.  Law.com bloggers and co-hosts, J. Craig Williams and Robert Ambrogi welcome experts, Attorney Sherri Donovan, owner of the law firm, Sherri Donovan & Associates, P.C. and author of the published book, "Hit Him Where It Hurts-The Take No Prisoners Guide To Divorce" and Attorney Daniel E. Clement, principal in the Law Offices of Daniel E. Clement, and writer of the blog entitled, “New York Divorce Report, New York’s Family and Law Blog.”

MP3:
http://websrvr82il.audiovideoweb.com/ny60web16519/LTN/C2C/C2C_022807_Divorce.mp3

Windows Media:
http://interface.audiovideoweb.com/lnk/avwebdsnjwin4287/LTN/C2C/C2C_022807_Divorce.wma/play.asx

Valentine’s Day, for most, is the most romantic day of the year. Thanks to Hallmark, we buy the ones we love gifts and send them flowers. The problem, if you are married and sending the flowers and gifts  to someone other than your spouse, you may just get caught.   

Poynter Online details how , particularly on February 14, cheating spouses get caught:

The Atlanta Journal-Constitution found private detectives who said Valentine's Day is a big deal for cheating spouses:

Feb. 14, these investigators joke, is their Super Bowl of Surveillance.

"Eighty percent of cheating spouses will try to spend part of the day with the other person," said Jimmie Mesis, editor of the trade journal PI Magazine.

Ruth Houston -- founder of InfidelityAdvice.com and author of "Is He Cheating On You?" -- says she normally discourages the use of private investigators, but makes an exception for Valentine's Day.

"I've seen too many people spend hundreds of thousands of dollars, only to come up empty except for a receipt," Ruth said. "But if someone's cheating, they are going to make contact on Valentine's Day, either to give a gift or receive one."

Jeanene Weiner is the founder of Busted Confidential Investigations, an all-woman outfit in Marietta boasting the grrl-power motto "Where Intuition and Information Meet."

Her Valentine's Day will begin early, because she knows from experience that many of the cheaters will schedule a breakfast or lunch-hour tryst.

"This way, they get to go home after work and spend a romantic evening with the person they're married to, and no one suspects a thing," she said.

Last year, The Wall Street Journal found:

The Institute for Divorce Financial Analysts, a Southfield, Mich., trade group of professionals trained to review divorce settlements, says filings typically spike in mid-February. "It's so consistent I can't deny a pattern," says Natalie Nelson, a divorce financial analyst in Boulder, Colo.

Indeed, divorce lawyers say they frequently turn up evidence of Valentine's Day duplicity when they review financial documents. Credit-card receipts from restaurants or purchases at fancy jewelry stores are the most common giveaways, says Heidi Harris, a partner at New York law firm Sheresky Aronson & Mayefsky.

New York attorney Raoul Felder concurs: "The kinds of purchases documented for Feb. 14 give an indication of how serious the relationship is," he says.

Divorces can be complicated and messy, both from a personal and a financial standpoint.  Forbes  published an article a couple of years ago which listed financial mistakes that everyone should try to avoid.  Here is their list, with my comments about each point listed afterward:

• Having unrealistic expectations. Parties often forget that their living expenses typically double when they separate.  The same income(s) now must support not one, but two households, and it is not uncommon for things to get tight for a period of time.
  
• Not communicating.  It is extremely important that clients give their attorney all of the necessary information about their case, and not didn't seem that important can result in disastrous consequences for the clients if their attorney is blindsided with them at trial.
  
• Getting into an endless battle. Some divorcing spouses fight in Court because they want to fight.  Either they can't get past their own emotional hurt from the divorce itself, they want to make their spouse's life miserable, or they just enjoy turmoil, stress, and fighting.  Parties would be well served to fight only those issues which truly need to be fought and act reasonably throughout the process.
  
• Getting hung up on the numbers.  It is important for the marital estate to be divided fairly between the parties, which generally means an approximately equal distribution.  However, there will always be some assets which would be better going to one spouse than the other, and in some cases it makes sense to use a different distribution to accomplish other necessary goals.  For instance, one spouse may benefit from taking less of the marital estate in exchange for a larger amount of spousal support (alimony).
  
• Focusing on the present and not on the future.  The financial issues in a divorce affect both parties long after the divorce is over.  Parties should realize that when they are attempting to get as much as they can by way of assets that there are often debts and other expenses that accompany them.  It makes no sense to fight to get something that you truly can't afford to keep in the long run.
  
• Forgetting to assess tax.  Many issues in divorce cases have tax consequences, and many of those do not show up until after the fact.  Examples can include alimony payments,  dependency exemptions, and capital gains issues. Parties are well served by having an accountant available to discuss these issues before it's too late.
  
• Overlooking important .  It is important to make sure that everything in your divorce case is addressed and thoroughly analyzed by your attorney.  For instance, are you sure that your spouse doesn't have a retirement account with his employer and/or are you sure that the balance is what he/she says it is?  Let your attorney obtain the necessary information directly from the source to verify it authenticity and accuracy.
  
• Failing to untangle all joint finances.  The sooner you can separate yourself financially from your spouse, the better off you will typically be.  If your spouse fails to make a timely payment on a joint debt, that stain can show up on your credit report.  Likewise, you may still be liable to the lender if your name is on that account and your spouse doesn't pay.
  
• Failing to take into account the amount of time you'll to get your career back on track.  In many marriages, one (or both) spouses have made career sacrifices -- either for each other or for their children.  In these situations, it takes time for that spouse to be in a position to earn an income comparable to the other spouse, if ever.  Keep this in mind when you are going through a divorce, because in most cases, the parties do not have an equally financial standing at the outset.

             Leaving New York, as perhaps the only state not to have  a "No fault" grounds for divorce, New Jersey adopted irreconcilable differences as a grounds for divorce.

            We can only hope that the New York lawmaker's will see the wisdom of changing the divorce law and enact a no-fault grounds for divorce in the current legislative session.

The Wall Street Journal ran an article today in which a couple, in the absence of lawyers, easily divided their assets on the way to an easy and amicable divorce. This scenario, I am afraid, has limited applicability.

The article details the divorce of Tim and Edra Blixseth, who were married for twenty five years and, together, amassed a fortune worth two billion dollars. Apparently, the couple was able to sit together, share a bottle of fine wine, and divide their wealth in a relatively short time. 

For most couples, a divorce is far more complicated than deciding who gets the 420 acre estate and who gets control of the fleet of corporate jets.  For most, a division of the assets is simply not that easy. Assets, like homes and automobiles, are generally encumbered by debt.   The parties are generally so leveraged that assets must be liquidated in order to distribute the equity. 

Since the Blixseths had adult children, they did not have to address the issues of child custody or visitation. Often, these issues are more emotional and demanding than the economic issues.

Absent greed, there was no reason why the Blixseths could not easily settle their case. The multi-billion dollar marital estate left both parties with more than adequate wealth to support their luxurious lifestyle or to replace any asset given up as part of the divorce settlement

Often, it is the less affluent divorce that requires good lawyering to settle. In a case, where there are insufficient assets and income to support both parties in the marital lifestyle, a couple of hundred dollars a month in child support or spousal maintenance payments makes a big difference.  I am certain that part of what made the Blixseths’ divorce so easy is that they did not have to worry if they would have enough cash flow to make their monthly mortgage payments. 

If you are concerned about the growing incidents of identity theft, I recommend the following post from Trent Wilcox of the Arizona Divorce & Family Law blog:

It’s beginning to look a lot like . . . well, like the winter holidays, with all the gift-giving and –receiving opportunities that abound. Gift lists grow ever-longer and more specific, and the giver’s thoughts turn to long hours and longer lines at the mall, fighting for this year’s version of the last Furby or Cabbage Patch Doll on the shelf. Wouldn’t it be easier to log onto the Web and shop in your jammies, humming along with your Christmas tapes? But what about identity theft? Could you unwittingly be handing over your life to some scammer?

It is possible—but not as likely as the hype may lead you to believe. In the report prepared for the Federal Trade Commission in 2003 by Synovate, approximately 4.6 percent of the population experienced some form of identity theft in 2002. In the same report, it was determined that in twenty-five percent of all identity thefts reported, the thief obtained the information through theft of a purse or wallet.

So your chances of experiencing any form of identity theft are one chance in twenty. And if you are one of the unlucky ones, you have a one in four chance of having been taken when someone lifted your wallet or purse.

How else does your information get captured? Do you shred your credit card statements, or do you just toss them in the garbage? If you leave them whole, that gives a thief your name, address, and account number. If you put them in a desk drawer, someone could remove them from that drawer. And do you know where the waiter goes with your credit card when he goes to swipe it? Are you sure he’s not making notes on a post-it, just in case he feels your tip is too small? There’s more to identity theft than the Internet.

What do you do when you realize that something’s gone wrong? For most people, the main concern is with misuse of an existing credit card account. With good reason too—according to Synovate’s 2003 report, misuse of an existing card accounts for over half the incidents of reported identity theft.

First and foremost, report the loss or theft of a credit card to the issuer immediately. This can limit your liability dramatically, often to a cap of $50.00 per card. Close any accounts you know were tampered with and open new accounts with new passwords. Don’t choose something obvious like a string of consecutive numbers, your mother’s maiden name, parts of your Social Security Number, or names of children or pets. Then file complaints with your local police and with the Federal Trade Commission. Finally, place a fraud alert on your credit report.

Speaking of credit reports, they are one of the best tools for making sure accounts are not being opened in your name without your knowledge. You are entitled to one free credit report every twelve months—just for asking. Peace of mind makes a nice holiday gift to yourself.

I recall recently reading that identity theft is not uncommon between divorced spouses. Your ex-spouse does not need to sift through the garbage to obtain the personal information necessary to steal your identity.   The knowledge was obtained during the marriage and then handed to them as part of financial disclosure during the divorce.

She filed two years and one month from the day of her marriage, on Oct. 6, 2004. Her prenup, according to legal theorists, evidently carried increases for Federline for every year of their marriage. And those deadlines, they say, likely had 30-day grace periods.

Hence, Nov. 6 would have been Britney's last chance to get out of paying a third year of alimony settlement to a basically talentless slacker who was a drain on her finances.

And in the end, money is probably what Spears’ divorce is all about. Since she deliberately showed off a new trim body on David Letterman’s show the other night, Spears is obviously getting ready to go back to work. If a new album and tour are on the boards, Spears obviously doesn't want to share the proceeds with Federline. It was clearly better to get out now, so that K-Fed can lay claim to only half of Spears’ earnings during what has been the most fallow period in her career.

Since celebrity cases oft provide good facts to illustrate how the legal system works, I thought I would offer my two cents.   It is not uncommon for the provisions of a pre-nuptial agreement to make payments (either the amount of money or the duration of payments or both) conditioned on the length of the marriage. 

In Britney's case, divorce became a consideration as a triggering or measurement date in the pre-nup approached.  Britney elected to cut her economic losses. 

Perhaps, her "poor" husband's motive  for contesting the divorce is economic,  too.   If he is successful, then  he may be entitled to whatever rights he would have acquired on the third anniversary of marriage. 

Look for a settlement, soon.

Whenever playing a childhood game, the loser would inevitably call out as the game ended, “Do over.”  In golf, there are mulligans.  In the “game of divorce,” in most cases, there are no second chances to re-negotiate or litigate fairly negotiated and properly executed marital agreement.

The recently decided case of Kojovic v. Goldman, 2006 NY Slip Op 07595, makes this point abundantly clear. In Kojovic, the parties negotiated a post-nuptial agreement resolving all issues of equitable distribution and spousal maintenance. By the terms of the agreement, the wife was to receive a payment of $1.15 million dollars for her share of a closely held corporation in which the husband possessed a minority interest and was the chief executive officer. 

Continue Reading

 Jeffrey Lalloway points out in his California Divorce and Family Law Blog, an overwhelming 80% of divorce attorneys cited an increase in prenuptial agreements during the past five years in a recent poll of American Academy of Matrimonial Lawyer (AAML) members. In addition, 65% of those surveyed answered that prenuptial agreements are most often sought by men and women in the age range of 40-60 years old, revealing that people in the Baby Boomer generation are currently the most likely to request the contracts.

"It can be a sensitive subject, but in the same way you would discuss your future goals and dreams with a partner, prenuptial agreements can often represent the best way to ensure the needs of both parties are considered in the event of divorce," said Cheryl Lynn Hepfer, president of the AAML. "A married couple hopes never to have to enforce the terms of a prenup, but they also realize divorce proceedings could be much more unpleasant without such an agreement in place."

In a survey question that asked about the strangest items included in prenuptial agreements, 31% of the attorneys noted provisions being made for a family pet, while some of the lawyers shared even more offbeat areas that have been addressed. These unique agreements have included adultery penalties, terms for frequency of intimacy, limitations on weight gain, and schedules for housekeeping.

Imagine, you have been kicked and choked by your spouse, your life has been threatened, you summon the strength and courage to seek intervention, you call the police and, when you finally go to court to press charges, you hear a judge say "Every woman needs a good pounding now and then." 

According to a special report in the New York Times, this actually happened in an upstate New York village court. Alarmingly, according to the report, this type of ignorant justice is not an isolated incident.  It may be typical of the local courts statewide. 

In alarming detail, William Glaberson details how "local justice" is dispensed by unqualified and untrained judges, some barely possessing a high school education.  The article points out that New York demands more training for its manicurists and hair stylists than for the local judges. The judges are not screened for competence, temperament, or even reading ability.  (In the second part of the series,  one judge's reading comprehension is questioned.)  Worse, yet, there is little, if any, oversight of the local judiciary.

In areas outside of New York City, these local courts may be the court of first instance in domestic violence cases. The defendant may be arraigned in these courts and a temporary order of protection issued. While some allegations of domestic violence may be suspect, many others are well founded. Domestic violence matters require particular sensitivity. Unquestionably, a victim of domestic violence and abuse must be protected. On the other hand, safeguards must be in place to protect the falsely accused.

Unfortunately, the article demonstrates, often a judge's ignorance, bias and prejudice becomes the rule of law:

In 20 years in office in Haverstraw, north of New York City in Rockland County, Justice Ralph T. Romano drew attention for his opinions on women, state files show. Arraigning a man in 1997 on charges that he had hit his wife in the face with a telephone, he laughed and asked, “What was wrong with this?” Arraigning a woman on charges that she had sexually abused a 12-year-old boy, the justice asked his courtroom, “Where were girls like this when I was 12?”

Across the Hudson, Joseph Cerbone, the Mount Kisco justice with the miniature violin, persuaded a young woman to drop her abuse case against the son of a couple he had done legal work for. She told the commission that while she did not believe the justice’s claim that the son was “a decent guy” who had “made a mistake,” she had no choice.

“I kind of felt I had no one behind me, no support,” she said. “And by getting a phone call from a judge, I felt that maybe I was making a mistake by going through with these charges.”

Last week, Justice Jacqueline Silbermann sent a strong message to abusive spouses; domestic violence will be considered in the distribution of marital assets.

In DeSilva v. DeSilva, she ruled that a wife was entitled to all of the couple's marital property because her husband had verbally and physically abused her. This decision went even further than her earlier decision in Havell v. Islam, in which she awarded ninety-five percent of a couple's marital property to the wife because the husband had brutally attacked her with a barbell, nearly killing her and leaving her with permanent injuries. 

In Havell, the Court stated that because the husband's behavior "shocks the conscience," it was appropriate to deviate from the property division that might otherwise be appropriate under the circumstances of the case.

The husband in Havell, after violently beating his wife with a barbell, told their children not to worry about helping their mother because she was already dead.  The Appellate Division upheld Justice Silbermann’s ruling by concluding that the husband’s marital misconduct could be taken into account when dividing property as long as it was "so egregious or uncivilized as to bespeak of a blatant disregard of the marital relationship.”

Fortunately, the husband’s conduct in De Silva was not as violent as the physical assault in Havell, but, it was, in the Court’s view, as egregious, thereby justifying an award to the wife of all of the parties’ assets.  

In De Silva, Mrs. De Silva alleged that Mr. De Silva had engaged in a long history of abuse towards her, which, increased over time in both frequency and intensity. Mrs. De Silva alleged that her husband spat in her face; while she was pregnant with their second child, threw a packed duffel bag at her stomach; and engaged in verbal tirades in front of their children and other witnesses. Mrs. DeSilva testified that she feared for her safety and the safety of her children, and suffered extreme mental anguish because of her husband's conduct.

From these decisions, it is certain that abusive behavior, be it a single violent incident or a prolonged course of conduct, will be a factor in equitable distribution.   What remains to be determined is how a party’s violent, abusive or egregious conduct will interplay with the other statutory factors of DRL §236(b)(5)(d) (i.e., the parties’ respective age, health, the duration of the marriage, etc.) which are required to be considered by a court rendering judgment on equitable distribution.  

You have been served with a summons in connection with a divorce action -what do you do?

 You must immediately decide whether you will be contesting the divorce. In doing so, you will have to determine whether the marriage is dead, whether the marriage is salvageable and to attempt reconciliation or whether you will need to contest the divorce for other reasons. 

Reconciliation requires cooperation. If you spouse does not want to reconcile, there may be nothing you can do to salvage the marriage. You can contest the divorce, but even if you prevail and the divorce is denied, you cannot force your spouse to live with you or to revive the marital relationship. You will be married in name and legal effect only.

You should be acutely aware that by the time you have been served with the divorce papers, your spouse has, in all likelihood, consulted with an attorney, paid a retainer, and filed a summons seeking a divorce in court. You may surmise that this person does not really want to be with you.  

By contesting a divorce, you force your spouse to prove, at trial, each and every element of their grounds for divorce. That is they must prove all of the jurisdictional requirements (the reason the court has the authority to hear the case and render a judgment) and all of the elements for grounds for divorce (i.e., adultery, cruel and inhuman treatment, abandonment for a year or an imprisonment). So, for instance, if the divorce is based upon the grounds of abandonment, you spouse must prove that for a year before he/she commenced the divorce, without excuse or justification, you continuously abandoned him/her.  

If you agree that the marriage is over, but there are other unresolved issues relating to the children of the marriage, visitation, child support, equitable distribution of property, spousal maintenance or any other issue, you should contest the divorce.  The court can bifurcate the trial. In other words, the court can separate the issues that the parties agree on, say, for instance, to divorce, but address only the issues in dispute, generally the economic issues or the issues related to the care and custody of the children.   No divorce will be granted until all the issues have been resolved by trial or agreement.  

Suppose, however, that you agree the marriage is over, but not for the reasons alleged by your spouse. For example, the husband alleges he was abandoned by the wife. In reality, the husband not only abandoned the Wife, but moved in with another woman, whose child he fathered. The Wife, in this example, could counterclaim that the Husband abandoned the Wife and also committed adultery. At trial, each party would have the opportunity to prove his or her case in order to obtain a divorce. If either party sustains his/her burden of proof, a divorce will be granted. Conversely, if neither proves his/her case, both will be denied a divorce.

In making the decision whether to contest the divorce, the party should carefully consider all of the issues to be resolved in connection the divorce, the available options, the likelihood of success on the merits, and the costs involved in defending the action. 

In an aptly titled article Real Estate and Rubble: When Marriages Go Awry , the New York  Times  stated:

 “. . .[I]n New York, lawyers say, while blowing up a building is extreme, vindictiveness is not unusual. Divorce lawyers said they had seen pets killed and wives given theater tickets so their husbands could put their possessions on the street.”

“Some say such spiraling levels of anger, rage and eventually violence are a function of New York’s cumbersome divorce laws, which require one spouse to find fault with the other and thus encourage lawyers to keep the fight going as long as possible, spousal tensions rising all along.”

The Times continued: “If Las Vegas is the capital of instant divorce, New York City is the worldwide capital of unfathomably big awards and ferocious litigation. Think of Donald and Ivana Trump, Rudolph W. Giuliani and Donna Hanover, Jocelyne and Alec Wildenstein, Ronald O. Perelman and Patricia Duff”

The absence is of a true no-fault divorce is more than problematic. In the best cases, the absence of a no-fault divorce requires a party to perjure him/herself to state grounds to obtain a divorce.  In the worst cases, it gives license to the spouse against whom a divorce is sought to extort money and other concessions from spouse seeking the divorce. Opposition to the grounds for divorce is often withdrawn after the party seeking divorce gives in on some unrelated issue. 

In cases where a party is unable or unwilling make some concession, the parties must, as the Times correctly points out, litigate. As the litigation progresses and the accusations and vitriol increase, it is only natural that the parties become more desperate and more despondent. 

Dr. Bartha’s actions are inexcusable. But it is foreseeable that a person suffering from mental illness, thrust in a system that rewards conflict and confrontation, could, when faced with certain defeat, violently lash out with destructive force. Indeed, Dr. Bartha’s former lawyer portrays his client as being “ hounded by aggressive lawyers who stripped him of his dignity and everything he owned, taking his beloved house when he was too depressed to defend himself.”

Will adopting a no-fault divorce law end all destructive conduct in divorces? No. But a more liberal law will certainly ratchet down the acrimony that leads to these cruel and violent acts.

 While there is not a lot of levity in divorce, perhaps this tale of a husband and wife involved in a bitter divorce for possession of the marital home could be instructive. The Husband may have won a battle ( or so he thought); he certainly lost the war.   The story, if not useful, is, at least,  humorous.

 She spent the first day packing her belongings into boxes, crates,
 and suitcases.
 
 On the second day, she had the movers come and collect her things.
 
On the third day, she sat down for the last time at their beautiful
 dining room table by candlelight, put on some soft background music, and
 feasted on a pound of shrimp, a jar of caviar, and a bottle of
 chardonnay.
 
 When she had finished, she went into each and every room and stuffed
 half-eaten shrimp shells dipped in caviar into the hollow of all of the
 curtain rods. She then cleaned up the kitchen and left.
 
 When the husband returned with his new girlfriend, all was bliss for
 the first few days. Then, slowly, the house began to smell. They
 tried everything: cleaning, mopping, and airing the place out. Vents
 were checked for dead rodents, carpets were steam cleaned, and air
 fresheners were hung everywhere!
 
 Exterminators were brought in to set off gas canisters, during which
 they had to move out for a few days, and in the end they even paid to
 replace the expensive wool carpeting. Nothing worked. People stopped
 coming over to visit. Repairmen refused to work in the house. The maid
 quit. Finally, they could not take the stench any longer and decided to
 move.
 
 A month later, even though they had cut their price in half, they
 could not find a buyer for their stinky house. Word got out, and,
 eventually, even the local realtors refused to return their calls.
 Finally, they had to borrow a huge sum of money from the bank to
 purchase a new place.
 
The ex-wife called the man and asked how things were going. He
 told her the saga of the rotting house. She listened politely and said
 hat she missed her old home terribly and would be willing to reduce
her divorce settlement in exchange for getting the house back. Knowing
 his ex-wife had no idea how bad the smell was, he agreed on a price that
 was about 1/10th of what the house had been worth, but only if she were
 to sign the papers that very day.
 
 She agreed, and, within the hour, his lawyers delivered the paperwork. A
 week later, the man and his girlfriend stood smiling as they watched the
 moving company pack everything to take to their new home, including the
 curtain rods.

This headline caught my eye:  Boy Tarzan's ma takes swing at dad in divorce.

 "The teenage star of Broadway's "Tarzan" was hurt so much by a bitter feud between his parents it sent him into intense therapy sessions."

Unfortunately, this is not an isolated case. It is the children who often bear the scares of a bitter divorce battle. In the best of situations, the parties agree that they cannot stay married, but work together to foster the best interests of the children.   However, in the worst of situations, the parties fight over everything, including the children. The children of a marriage merely become pawns in their parents’ battle. 

Minor visitation schedule modifications become epic battles; fights erupt over a drop-off and pick-up time for visitation. In the most egregious cases, one parent openly bad mouths the other parent to the children.  How could a child not become alienated or depressed? 

Every judge admonishes the litigants that the children have two parents and that the children have the right to enjoy the love and attention of both parents. It is sincerely hoped that parents put their differences aside and do what is necessary to support and foster relationships with their ex’s.   The alternative is, I am afraid, a country of depressed alienated children, who will one day promulgate their ills when they, one day, become parents.

 I often receive telephone calls from prospective clients and, without fail, the first question out of their mouth is, “How much will a divorce cost?”   I cannot answer that question, at least without probing further.

A divorce is not a commodity. A prospective client is not purchasing a widget, where they can comparison shop by price. Instead, the client is retaining a professional to render a service. Legal services are generally rendered on a time basis.   That is, the client generally pays for legal representation at an agreed upon hourly rate. An attorney’s hourly rate is often a measure of the lawyer’s experience, knowledge and reputation.  

Often, when I explain this, the next question is, “Well, you have been doing this for some time; you must know how long my divorce will take.”   My answer again is, “I don’t know how long your divorce will take.” I am an attorney not a fortune-teller.   I know only what you told me about your case, I completely unaware of your spouse’s view of the case (which may be diametrically opposed to your view). 

 Clearly, the more heated and contested the divorce, the more time will be spent in handling your matter, resulting in a higher fee. If you or your spouse are unreasonable in your expectations or inflexible in your demands, you will spend more time and money on the divorce. Oft times, parties will be so litigious, that the entire marital estate could be exhausted in legal fees.

 On the flip side, if there are no issues, or if the issues can easily be resolved, the cost of the divorce can be minimal.  

That said, should you really pick your attorney based solely upon price? After all, do you pick your doctor on price or because you are confident in his/her abilities? In future postings, I will discuss what you should consider when retaining an attorney.  

I think the only time a legal fee should be a consideration is when it is too low. A low ball legal fee is a reason to run away from that representation.   I am aware that there are many services that advertise they will assist you in obtaining a divorce for a couple of hundred dollars.   Stay away from these services. These practices may be, at best, paralegal services. Odds are you will never speak to an attorney. These “divorce mills” work on volume and are ill-equipped handle substantive legal problems.   

 Over the years, I have represented several clients after they have been “represented by” a divorce mill. Most of the cases were riddled with problems.   These unfortunate clients found out the hard way, there is no such thing as a bargain as the cost to undue the divorce mill’s errors exceeded the perceived savings in retaining these services. 

 On the other hand, I am not advocating going to the opposite extreme, retaining the lawyer with the highest hourly rate. Just go into the relationship with your eyes open.

One federal judge, miffed at lawyers who could not agree on how to handle a dispute, ordered the lawyers to appear on the courthouse steps and resolve their petty squabble by playing rock, paper, scissors.  Judge Makes 'Rock, Paper, Scissors' Ruling.  Perhaps this is a good method of alternative dispute resolution.

Clearly this judge would not have the patience to hear matrimonial disputes where the litigants oft argue like little children over personal property of little or no value.  Combative parties to a divorce will spend thousands of dollars on attorneys’ fees and court costs to fight about some object  of personal property, not because they really want it, but because their spouse expressed some interest in retaining it.  The tug-of-war over assets could easily deplete the marital estate so that in the end, after paying all the costs of litigation, there is nothing left to fight about.   I have often thought that when my clients become so entrenched in this type of battle, I would be doing them a service if I simply took my opposing counsel shopping and merely bought an identical set of dishes so that each spouse could “win.”

I think this Judge was correct in forcing the litigants to recognize their foolishness. Perhaps, rather than enabling some of the petty disputes that are common in a divorce, we should force the parties to recognize their counter-productive and immature behavior. This will certainly help to reduce the over crowded court calendars and reduce the cost of obtaining a divorce.

If dialog and reasonable negotiations fail, we can always resort to rock, paper scissors.