New York Divorce Lawyer & Attorney : Clement Law Firm : Family Law Serving Manhattan, Westchester County, Brooklyn, Queens, Bronx, New York City

The verdict is in - it is no shock that the Youtube videos of Tricia Walsh-Smith back fired.

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

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

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

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

As the New York Post put it:

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

The New York Law Journal quoted the decision:

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

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

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

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A number of the presidential candidates are divorced. Fred Thompson, John McCain and Rudy Guliani are all divorced. Should the reasons for their divorces be fodder for their qualifications as President?

For instance, there has been discussion on the blogosphere about Fred Thompson’s divorce based upon “cruel and inhuman” treatment. Does this mean the Thompson was a wife-beater or a victim of domestic violence?  Not necessarily.

As one commenter pointed out in The Atlantic:

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 New York, for instance, where a “No Fault” divorce is not an option, unless the parties are willing to be legally separated for a year, their divorce must be fault based. Cruel and inhuman treatment is one available option for a grounds based divorce.

On the other hand, we will never know if Thompson selected his grounds for divorce because it was a means to an end, a quick divorce, or because there were actually incidents of domestic violence. If an irreconcilable differences grounds for divorce was available, would the Thompson’s have pursued a divorce based on cruel and inhuman treatment?

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Lindsay Loans’ parents divorce highlights one of the problems with the family law system in New York. As highlighted in Newsday, while the parties’ divorce is heard in the Supreme Court, other issues are being heard in the Family Court.

The fact that two courts have jurisdiction to hear and decide some of the issues could lead not only to inconsistent rulings, but also to added confusion, delays and strategic "shopping" for judges, not to mention, increase litigation costs.
 
Newsday provided gave this short synopsis of the Lohan divorce and custody case:

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.

I have personally represented litigants who have related matters pending in three courts: a divorce action in the Supreme Court; an order of protection issued out of the Family Court, and a violation of the order of protection in Criminal Court. This multiple forum scenario gives three different judges opportunity to render a decision inconsistent with other findings in the case.   In an extreme case, a party could have been found guilty of violating an order of protection that should not have been granted.  The acts could even be found to be insufficient to establish a cause of action for cruel and inhuman treatment for divorce.

Some counties have introduced a specialized court where the judge is equipped to handle cases when there is a pending divorce, criminal and family court matter pending. This good idea. There would be one judge who would be wholly aware of all facets of the case. The potential of inconsistent findings and forum shopping is eliminated.

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