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

With the United States Supreme Court determining the fate of the Defense of Marriage Act (DOMA), same sex married couples should file protective claims for federal tax refunds with the Internal Revenue Service now.  

As I earlier discussed here,

If same sex marriage is recognized by the federal government, same sex couples may be eligible to file an amended return to change their filing status.   The problem is, however, that taxpayers are only permitted to amend their returns for the prior three tax years or two years since paying the tax.     For any tax returns filed outside of the limitation period, the tax payers may just be out of luck.              

The deadline for filing protective claims for 2009 refunds is April 15, 2013.  

The Defense of Marriage Act (“DOMA”) unconstitutionally discriminates against married same sex couples ruled a New York Federal Court.

Edith Windsor sued the federal government because it failed to recognize her Canadian marriage to Thea Speyer. Speyer died, leaving her estate to Windsor. Normally, inherited property would pass between spouses without the imposition of estate taxes, but, because DOMA prevents recognition of same sex marriages, the estate was assessed $363,000 in estate taxes.

In striking down DOMA, Judge Barbara Jones wrote:

DOMA does not affect the state laws that govern marriage. Precisely because the decision of whether same-sex couples can marry is left to the states, DOMA does not, strictly speaking, “preserve” the institution of marriage as one between a man and a woman. The statute creates a federal definition of marriage. But that definition does not give content to the fundamental right to marry–and it is the substance of that right, not its facial definition, that actually shapes the institution of marriage.

In her decision, the Judge also noted that she could not discern a logical relationship between DOMA and the government’s goals of promoting family values and responsible parenting.

The decision can be read here.

New York became the sixth state to permit same-sex marriage.    The new law becomes effective on July 24, 2011. 

New York officials are preparing for a surge in in applications for marriage licenses when the floodgates open.

  Unfortunately, at some time in the foreseeable future, there will be a corresponding surge in same sex divorce.    As I noted, when interviewed by the New York Post:

Lost in the euphoria of the historic passage of New York's same-sex marriage bill is the inevitability of bitter break-ups.

There will be support claims to resolve, property to divide and custody issues to settle, as with any other divorce.

"The same issues present themselves with same-sex couples: How do we split assets? What do we do with the children?" Clement said. "The law doesn't change merely because you have same-sex partners

Officials predict that about 21,000 same sex couples will wed in New York in the next three years. If the state's current divorce rate of 8.4 percent holds, about 1,800 of those marriages will not survive.

Consistent with the rise in pre-nuptial agreements with the economy faltering, the marriage rate is down. 

 The New York Times is reporting that:

  A long-term decline in marriage accelerated during the severe recession, according to new data from the Census Bureau, with more couples postponing marriage and often choosing to cohabit without tying the knot.

 According to the federal data, the share of young adults who have never married climbed from 35 percent at the start of the decade to 46 percent in 2009.      While the rate of marriage is down, it appears more people are cohabiting. 

Why cohabitation instead of marriage?   I suppose cohabitation allows couples to enjoy the social, economic and other benefits of marriage, without the associated costs.  As one interviewee expressed, “Yeah, it definitely takes money to get married . . . being married probably means eventually buying a house and having kids, right?”

Every once in awhile a case comes along that is so egregious, that even where the law should compel a court to rule one way, the facts force a different result. The case of Campbell v. Thomas is one such example.

Here are the facts as recited by the Court:

Nidia well knew, Howard's dementia had advanced to the point that he often had difficulty recognizing family members, had lost the ability to understand his legal and financial affairs or even to attend to his own basic hygiene, and could not be left alone for any period of time. Nidia had also been informed that, due to the progression of his prostate cancer, Howard was not expected to live much longer. With knowledge of these facts, Nidia waited until Nancy, Howard's primary caretaker, left for a vacation, and then married Howard, without informing Nancy or any other member of Howard's family until after the fact.

The facts go on to recite that somehow, before his death, Nidia manipulated Howard’s finances and somehow became the sole beneficiary on Howard's retirement account.

Five years after Howard’s death, the marriage was declared to be “null and void” on the ground that Howard was "incapable of consenting to a marriage for want of understanding."

In New York, a spouse has a right of election which entitles a surviving spouse to portion of the decedent’s estate. The purpose of this provision is to prevent one spouse from dis-inheriting the other.

In this case, Nidia sought to collect her elective share of Howard’s estate.

Though the Court found that technically Nidia had a right to an elective share as a “surviving spouse”- it applied the age old principle that no one shall be permitted to profit by his own fraud, or to take advantage of his own wrong” and denied Nidia her right to her elective share.

While the Court was clearly offended by Nidia’s conduct, its ruling was also motivated by the need to protect the elderly and infirm from overreaching and undue influence. The Court made it clear that even in absence of statutory prohibitions, it will not condone marriages to the elderly and those lacking capacity motivated by a desire to cheat them or their estates.
 

What really happened to Tiger Woods? We will probably never know- though we can speculate.

If the voicemail released of Tiger Woods pleading with a lover “Can you please take your name off my phone?” is authentic, perhaps the car accident was the result of a heated argument that escalated violently out of control. On the other hand, the accident could have resulted from a distraught Tiger’s failed attempt to drive away from the house to allow everyone time to cool off.

Regardless, despite the public criticism, Tiger was well counseled not to speak with the authorities. In the end, the matter seemed to be closed with the payment of a token fine and four points on his driver’s license. Had Tiger spoken to the police, either he or his wife could have been arrested as is well explained by Elie Mystal in her piece on Above the Law:

In 1991, Florida became one of many states to set up a pro-arrest policy in domestic-violence cases. For years, feminist advocates had complained that police treated domestic-violence cases as private, family matters and assumed the abused spouse would never follow through and press charges.
Beginning in the 1990s, laws began virtually to force the police to take action. The new statutes direct police to figure out who was the “primary aggressor” in a domestic dispute. They make a call based on a checklist (bruises, disparity of physical size), and then they make an arrest. Howls of protest from the abused spouse are to be ignored: “The decision to arrest and charge shall not require the consent of the victim or consideration of the relationship of the parties,” the Florida law reads.

Remember, this is a good law. It protects victims of domestic violence who are dissuaded from assisting the criminal prosecution of their abusers out of fear of retribution.

And (rightly) the door swings both ways. It doesn’t take into account the gender of the alleged attacker or victim. The police have a duty to investigate Elin Nordegren and pursue any criminal charges that may be relevant.

That Tiger might not want this to happen couldn’t matter less. It’s not his call.
. . .
Well, if the allegations about Elin Nordegren are true and Tiger wants to keep her out of jail, then his best response right now is to keep his mouth shut. Especially when cops are around. You lawyers know the drill: don’t talk, don’t answer questions, don’t cooperate, don’t agree, don’t speak English, don’t remember — for the love of God, just shut up!
 

The New York Court of Appeals narrowly upheld same sex marriage in New York.  

The Court, in a 4-3 decision did not settle the question  of whether same-sex marriages performed in other states should be recognized. Judge Eugene F. Pigott Jr., writing for the majority, expressed “hope that the Legislature will address this controversy.”

The three judges in  a concurring decision,said that the court should have addressed the wider issue because New York law already allows for the recognition of marriages that are considered legal elsewhere.

In her concurring opinion,  Judge Carmen Beauchamp Ciparick, wrote  “that the orders under review should be affirmed on the ground that same-sex marriages, valid where performed, are entitled to full legal recognition in New York under our state’s longstanding marriage recognition rule.”

The two case evolved out of  the policy of  the Department of Civil Services, extending health insurance benefits to the partners of state and local workers who were married out of state and a similar policy in Westchester County.

In order to have real conversations about marriage and divorce  (and everything in between), I started a fan page  Married in New York.  Please check it out.   Become a fan and become engaged (in the discussion).

The first topic of discussion  is the question I am  probably asked most often: When people first wed, they are in a state of bliss and believe that their marriage will be forever. Why you think half of marriages fail?   What do you think?

Have no fear- I will continue to write this blog.   

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.

New York City is making a big play to challenge Las Vegas to become a marriage destination.

As reported on Cityfile.com: 

Next week the city opens its new, 24,000-square-foot Manhattan Marriage Bureau following $12 million in renovations to the building. (The mayor tapped his personal interior designer, Jamie Drake, to do the job.) . . . It's all part of Michael Bloomberg's plan to unseat Las Vegas as the nation's "wedding capital" and turn New York into a marriage destination!

When I went to get my marriage license ten years ago, I thought that that the marriage bureau in New York’s municipal building was a run down and really depressing place. (It was also odd that New York City  would not accept cash as payment for the marriage license.   Isn't cash still good legal tender?.)

The new wedding palace features "lavish" extras like iPod docking stations and an oversized photo of City Hall to use as a backdrop for pictures. And there's plenty of overpriced crap on sale to help pay for it all, like flowers ($4 to $7 for a single stem), hairspray ($4), disposable digital cameras ($16.25), and tissues ($1.75 a pack).

Hopefully, the new and improved marriage bureau will be the first of many happy memories for the newlyweds and provide a shot in the arm for the New York economy.
 

I recently came across pretty naive article in which Ashia Sims, a relationship examiner, opined that marriage should be forever and divorce should not be an option. While the idea that that marriage is forever is highly appealing and very romantic, it is premised on an overly simplistic or idealized view that two people are destined to be together, forever.

In her article, Ms. Sims wrote:

In my mind, once I’m married it’s FOR LIFE. There is no breaking up or getting a divorce. We are going to make it work and grow old together. Period. I do agree that if you make divorce an option, even if only in the back of your mind, you give yourself permission to not work as hard as possible to make the relationship work.

I am not so cynical to believe that most people enter marriage viewing it as temporary condition. Most of my clients entered into their marriages in the good faith belief that they would spend the remainder of their lives with their spouses. But, life is not linear or always go as planned. Relationships evolve. People change. Two people, just because they are wed, do not necessarily grow at the same rate or in the same direction. When a couple no longer shares the same goals, visions or values and their differences can no longer be reconciled, even after counseling, should they be compelled to remain together? For what purpose?

Then, there are the issues of infidelity, domestic violence and substance abuse. Trust and respect are the cornerstones of a healthy relationship. If one of the spouses has been badly betrayed and the marital relationship has irretrievably broken down, why should these people stay together?

When dating, few people acknowledge that they are abusers. Should a battered spouse be compelled to remain in a marriage because of the simplistic view that marriage is forever?

While some people may prematurely end their marriages, most do not. The vast majority of divorcing couples elect to end their marriage as a gut wrenching last resort choice. Divorce only becomes an option after their attempts to salvage the marital relationship fail. No one should be forever imprisoned in a bad marriage because of the child-like belief that marriage has to be forever.

When Ms. Sims finally weds, I hope her relationship will be a healthy and nurturing long-lasting one. But, if life does not go as planned, it is good to know that are options.
 

The potential windfall of same-sex marriage was underscored this week in a study by the Williams Institute at the University of California, Los Angeles, School of Law, which estimated that over three years, same-sex nuptials would contribute $684 million to the state’s wedding industry and $64 million to the state budget.

It’s basically a godsend,” said Daniel Doiron, the general manager of the Ingleside Inn in Palm Springs, which is offering honeymoon specials from $479 bargain basement (boutonnieres, 15-minute wedding, 20 guests) to the “Elizabeth Taylor” at $29,999 (poolside villas, wedding cake and reception, ice sculptures, flowers, sit-down dinner for 200 and three nights in the honeymoon suite).

By their own widely reported accounts, Mrs. Loving and her husband, Richard, were in bed in their modest house in Central Point in the early morning of July 11, 1958, five weeks after their wedding, when the county sheriff and two deputies, acting on an anonymous tip, burst into their bedroom and shined flashlights in their eyes. A threatening voice demanded, “Who is this woman you’re sleeping with?”

Mrs. Loving answered, “I’m his wife.”

Mr. Loving pointed to the couple’s marriage certificate hung on the bedroom wall. The sheriff responded, “That’s no good here.”
The certificate was from Washington, D.C., and under Virginia law, a marriage between people of different races performed outside Virginia was as invalid as one done in Virginia. At the time, it was one of 16 states that barred marriages between races.

After Mr. Loving spent a night in jail and his wife several more, the couple pleaded guilty to violating the Virginia law, the Racial Integrity Act. Under a plea bargain, their one-year prison sentences were suspended on the condition that they leave Virginia and not return together or at the same time for 25 years.

Judge Leon M. Bazile, in language Chief Justice Warren would recall, said that if God had meant for whites and blacks to mix, he would have not placed them on different continents. Judge Bazile reminded the defendants that “as long as you live you will be known as a felon.”

They paid court fees of $36.29 each, moved to Washington and had three children. They returned home occasionally, never together. But times were tough financially, and the Lovings missed family, friends and their easy country lifestyle in the rolling Virginia hills.

By 1963, Mrs. Loving could stand the ostracism no longer. Inspired by the civil rights movement and its march on Washington, she wrote Attorney General Robert F. Kennedy and asked for help. He wrote her back, and referred her to the American Civil Liberties Union.

The A.C.L.U. took the case. Its lawyers, Bernard S. Cohen and Philip J. Hirschkop, faced an immediate problem: the Lovings had pleaded guilty and had no right to appeal. So they asked Judge Bazile to set aside his original verdict. When he refused, they appealed. The Virginia Supreme Court of Appeals upheld the lower court, and the case went to the United States Supreme Court.

Mr. Cohen recounted telling Mr. Loving about various legal theories applying to the case. Mr. Loving replied, “Mr. Cohen, tell the court I love my wife, and it is just unfair that I can’t live with her in Virginia.”

Mildred Delores Jeter’s family had lived in Caroline County, Va., for generations, as had the family of Richard Perry Loving. The area was known for friendly relations between races, even though marriages were forbidden. Many people were visibly of mixed race, with Ebony magazine reporting in 1967 that black “youngsters easily passed for white in neighboring towns.”

Mildred’s mother was part Rappahannock Indian, and her father was part Cherokee. She preferred to think of herself as Indian rather than black.

Mildred and Richard began spending time together when he was a rugged-looking 17 and she was a skinny 11-year-old known as Bean. He attended an all-white high school for a year, and she reached 11th grade at an all-black school.

When Mildred became pregnant at 18, they decided to do what was elsewhere deemed the right thing and get married. They both said their initial motive was not to challenge Virginia law.

“We have thought about other people,” Mr. Loving said in an interview with Life magazine in 1966, “but we are not doing it just because somebody had to do it and we wanted to be the ones. We are doing it for us.”

In his classic study of segregation, “An American Dilemma,” Gunnar Myrdal wrote that “the whole system of segregation and discrimination is designed to prevent eventual inbreeding of the races.”

But miscegenation laws struck deeper than other segregation acts, and the theory behind them leads to chaos in other facets of law. This is because they make any affected marriage void from its inception. Thus, all children are illegitimate; spouses have no inheritance rights; and heirs cannot receive death benefits.

“When any society says that I cannot marry a certain person, that society has cut off a segment of my freedom,” the Rev. Dr. Martin Luther King Jr. said in 1958.

Virginia’s law had been on the books since 1662, adopted a year after Maryland enacted the first such statute. At one time or another, 38 states had miscegenation laws. State and federal courts consistently upheld the prohibitions, until 1948, when the California Supreme Court overturned California’s law.

Though the Supreme Court’s 1967 decision in the Loving case struck down miscegenation laws, Southern states were sometimes slow to change their constitutions; Alabama became the last state to do so, in 2000.

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

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

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

A New York appeals court unanimously ruled that a gay couple's marriage in Canada should be recognized in New York.

As pointed out in the Sui Generis-a New York Law Blog, at issue in Martinez v. County of Monroe was whether Monroe Community College properly denied health care benefits to the female partner of a female student. The MCC student had previously married her partner in Canada.

The New York Legal Update fills in some more of the relevant facts:

On July 5, 2004, the plaintiff Patricia Martinez married her same-sex partner, Lisa Ann Golden, in the Province of Ontario, Canada. Ms. Martinez was an employee of the defendant Monroe Community College, in Rochester. On the basis of that marriage, Ms. Martinez applied to the college two days later on July 7, 2004 for spousal health care benefits for Golden. The College admittedly provided health care benefits for the opposite-sex spouses of its employees. However, on November 24, 2004, the College's Director of Human Resources denied the plaintiff's application for spousal health care benefits.


The plaintiff then commenced an action seeking, among other things, a declaration that the College's failure to recognize her marriage for purposes of her spousal health care benefits application violated her rights under the Equal Protection Clause of the New York State Constitution and Executive Law § 296,

In deciding the couple’s rights to insurance coverage, the Court had to decide whether the parties were legally married.   The Court then provided a review of  the test of recognizing the validity of marriages obtained outside of New York:

For well over a century, New York has recognized marriages solemnized outside of New York unless they fall into two categories of exception: (1) marriage, the recognition of which is prohibited by the "positive law" of New York and (2) marriages involving incest or polygamy, both of which fall within the prohibitions of "natural law"  . . .

Thus, if a marriage is valid in the place where it was entered, "it is to be recognized as such in the courts of this State, unless contrary to the prohibitions of natural law or the express prohibitions of a statute"

The Court then pointed out that by applying the "marriage-recognition" rule, New York has recognized a marriages which would have not been valid if solemnized in New York.

We conclude that plaintiff's marriage does not fall within either of the two exceptions to the marriage-recognition rA]bsentA]bsent any New York statute expressing clearly the Legislature's intent to regulate within this State marriages domiciliariesdomiciliariesso Van Voorhis, 86 NY at 37). The Legislature has not enacted legislation to prohibit the recognition of same-sex marriages validly entered into outside of New York, and we thus conclude that the positive law exceptiVoorhishe general rule of foreign marriage recognition is not applicable in this case. .  .

The natural law exception also is not applicable. That exception has generally been limited to marriages involving polygamy or incest or marriages "offensive to the public sense of morality to a degree regarded generally with abhorrence" (May, 305 NY at 493), and that cannot be said here. . . . .

The Court of Appeals noted that the Legislature may enact legislation recognizing same-sex marriages and, in our view, the Court of Appeals thereby indicated that the recognition of plaintiff's marriage is not against the public policy of New York. It is also worth noting that, unlike the overwhelming majority of states, New York has not chosen, pursuant to the federal Defense of Marriage Act (28 USC § 1738C), to enact legislation denying full faith and credit to same-sex marriages validly solemnized in another state.

The Court concluded that the plaintiff’s marriage to Golden, which was valid in the Province of Ontario, Canada, would be entitled to recognition in New York. The Court concluded that absent express legislation to the contrary, prohibiting the recognition of same-sex marriages, such marriages would be entitled to recognition in New York.

I have worn my wedding ring every single day since my wedding more than seven years ago. I had never misplaced it before. But there I was staring at my bare finger. I noticed the indentation left by the ring, like a phantom band, and the skin tone of this narrow groove, a shade paler than the rest. I felt guilty, as though I had committed an act of infidelity. I imagined my wife’s quiet disappointment; there is nothing in the world quite like it. My hand grew heavy.

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.

Much ado has been made of  Jason Kidd’s allegations of domestic violence against his wife. Notwithstanding the celebrity factor, much of outcry is a product of the sexist preconception that there is no way a woman can abuse a man.  Moreover, how can a star athlete be a victim of domestic violence?

Any matrimonial attorney knows that domestic violence is not limited to husbands abusing their wives. Most practitioners could relate a war story where- in a husband was either emotionally, psychologically or physically abused by his wife.   

ABC News reports that experts on domestic abuse disagree on the number of men who are physically abused by their wives, but they agree that it is an underreported phenomenon.

There are few statistics regarding domestic violence against men.

A 1999 National Violence Against Women Survey sponsored by the Centers for Disease Control and Prevention indicated that while 1.5 million American women were beaten by a domestic partner or husband, 835,000 men — more than half that number — reported that they also were victims, a surprisingly high number to some.

Philip W. Cook, advocate and author of "Abused Men: The Hidden Side of Domestic Violence," is working to change what he calls "societal disbelief" in domestic violence against men.

"Attorneys don't encourage prosecuting it," Cook said. "Fred Lane of the … Carolina Panthers was shot and killed by his wife, and Tyrone Williams of the Green Bay Packers had his clothes slashed and tires slashed, and he needed to get stitches. … These were obvious victims. Just because a guy is a big athlete doesn't mean he's not a victim."

Lisa Mills, a feminist and author of "Insult to Injury: Rethinking Our Response to Intimate Abuse," agrees.

Mills notes that when women get violent, they often seek out tools and weapons to make up for what they lack in brawn.

"Men are beaten just as often as women, but women are injured twice as often," Mills said. "But the question really comes down to the validity of each claim."

There has been much ado in the tabloids this week about the allegations of domestic violence by Paul McCartney against Heather Mills. So I wondered, what relevance would these allegations have if this case was being heard in New York?

 In New York, because only the parties, their respective attorneys and the court have access to the papers filed in court, the press would not have access to court papers.   So, unless one of the parties leaked court papers, there would be no trial in the press.

If there was domestic violence during the marriage, Ms. McCartney could have sought intervention of the courts during the marriage and requested an order of protection against her husband.  

The fact of domestic violence would give Ms. McCartney grounds for a divorce. As I noted in previous postings, New York is not a “no-fault divorce” state. That means, a person seeking a divorce needs to allege and then prove one of the statutory grounds for divorce. The allegations of domestic violence, which if established at trial, could serve as the basis for a divorce upon the grounds of cruel and inhuman treatment.

As I also, discussed in an earlier posting, generally marital fault will not be a factor in equitable distribution, the method of dividing assets in New York.    Marital fault will only be taken in consideration where it is  “so egregious or uncivilized as to bespeak of a blatant disregard of the marital relationship.”

 A party’s acts of domestic violence would certainly be a relevant consideration in a contested custody case. In custody cases, the courts will be guided by what it perceives to be the best interests of the children. Certainly it would not be in a child’s best interest to be with a violent parent.

I do not have enough information as to form an opinion as the merits of the allegations. But, given the fortunes involved and the tabloids’ fascination with celebrity divorce, I am sure that, we will be hearing a lot more about this case in the near future.