Nolo’s Divorce, Custody & Family Law Blog

We're all familiar with the concept of a "marriage of convenience," where partners marry for reasons more practical than romantic. But in the current economy there's now an increase in what could be seen as a divorce of convenience--or even of necessity, with marriage becoming another casualty of the broken health care system.

A New York Times opinion piece this week illustrates the most common scenario: contentedly married spouses encountering the certainty of future health care costs that they simply can't afford discover that divorce is the only way to avoid financial ruin. In this case, a middle-aged husband has early-onset dementia, with a prognosis of degenerative mental function until he becomes unable to care for himself and must be institutionalized. On the advice of a social worker, the hospital where he receives care, and an attorney, his wife filed for divorce. The alternative was losing all of their joint and her separate assets as his health care gradually becomes more expensive. The wife continues to live with and care for her husband, but legally, they are not married and she is not responsible for his medical costs.

Medical costs are by far the leading cause of personal bankruptcy, according to a recent study in the American Journal of Medicine.

It seems that divorce is not only stressful and difficult in the short term--according to a New York Times article about a new study, both divorce and the death of a spouse can have long lasting negative health effects.

It's long been known that married people are healthier than non-married people, but this University of Chicago study concludes that losing a spouse can contribute to health problems that last for the rest of a person's life and aren't mitigated by remarrying. In fact, the never-married people ended up healthier than those who married and then lost a spouse to death or divorce.

On the other hand, it's not healthy to stay in a bad marriage, either. An Ohio State study about the effects of marital strife on healing showed that after an argument, physical wounds took longer to heal.

A recent New Zealand study says that while opposites may attract, after a while they begin to repel each other -- leading to a higher divorce rate than that of couples who are more alike. Differences in habits like smoking, drinking, and work, along with age differences, were the top oppositions leading to marital problems. From my perspective, it's probably not the differences themselves but a failure to communicate about them effectively that leads to marital discord, but either way, couples apparently aren't working out their opposite-ness.

I knew it! Baseball is a healthy, positive outlet that is good for people -- and their marriages. Business Week reports that a recent study sponsored by the University of Denver Center for Marital and Family Studies concludes that cities that wanted, and got, major league baseball teams had a 28 percent lower divorce rate than cities that wanted but didn't get teams.

Here's an example: In 1990, Denver's divorce rate was six divorces per 1,000 people. By 2000 -- seven years after the Colorado Rockies arrived in Denver -- the divorce rate had declined 20 percent to 4.2 per 1,000 people. (During the same period, the national divorce rate dropped only 15 percent.) Similar results were found in Tampa Bay (17 percent drop following the Rays' arrival) and Phoenix (30 percent drop when the Diamondbacks took up residence at the BOB).

Howard Markman, a psychology professor at the University of Denver, thought the correlation might be because "[g]oing to a baseball game and not talking about relationship issues, but rather having fun and talking as friends, is one of the ways to protect and preserve love."

I never heard it better told -- and maybe this is one reason my parents just celebrated their 50th anniversary. For me, it's just one in a long list of reasons that I say, take me out to the ball game!

Last month, I posted about a man trying to draw attention to his contested custody case by demanding either money or return of the kidney he donated to his ex-wife years before. Not surprisingly, the New York court hearing the case decided against him, ruling that public policy bars his claims for compensation -- he couldn't even get into court to have a transplant doctor testify as an expert about the value of the kidney. The court declined to apply the rule that gifts given from one spouse to the other during the marriage are marital property and can be divided at divorce, stating that while "the term 'marital propery' is elastic and expansive,'" the elastic doesn't stretch to encompass human organs.

Along with the other woes of the current economy, many people's employment has been affected by layoffs or hour and pay reductions. If you're one of those people and you're responsible for paying child or spousal support that is now going to be more difficult to afford, make sure you act quickly to avoid ending up in deep financial trouble.

It is possible to modify child support payments, which are based on the income of both parents as well as the amount of time children spend with each parent. If any factor in that equation changes, you can ask for a change in support as well. First, go directly to your ex-spouse and see whether you can reach an agreement to modify the amount of support being paid, and whether there's anything you can do to make up for the loss of support, like spending some of your newfound free time watching the kids so your spouse can work or save on child care costs.

If your ex doesn't see things the way you do, you may have to ask a court to modify support. Child support guidelines are set by state law and courts don't tend to deviate much from them, so if you're really earning less, you're likely to succeed in getting support changed. (You can check out a free child support calculator for your state to see what your support should be, based on your current income and timeshare.) But the judge will want to know what you're doing to find replacement work and may schedule you to come back to court to show how things are progressing.

Don't delay on this. Child support arrearages are serious business, and if you become delinquent you are at risk of losing your drivers' license, passport, and professional licenses.  

Spousal support is a different story. If you have an obligation to pay alimony, it's likely that your final divorce judgment or settlement agreement defines when that obligation ends. If it doesn't say that losing your job or income is a reason for support to end or change, then generally, you're stuck paying until the obligation is done.

For more, see these FAQs on modifying child support, on child support generally, and on spousal support (alimony).

Obviously, this story is already all over the blogosphere. It's too good to resist -- a man gave a kidney to his wife, and now that they're divorcing, he says he wants it back.

This is, of course, ridiculous. First, it's so clearly medically wrong and so unethical that no doctor would do it. Second, there's no legal basis for requiring the return of something that could only be given as a gift (it's illegal to sell organs). Third, his request for $1.5 million in lieu of the kidney if she won't give the organ back fails for the same reason -- it would be the equivalent of paying for the organ.

But the kidney isn't the real issue after all, according to Newsday's interview with the husband and his attorney, who said that "of course" the guy doesn't really want his kidney back. Rather, he wants to "draw attention to her not allowing him agreed-upon visitation with the couple's three children..." So the request for the kidney is a publicity stunt to support his allegations in their custody fight.

Sigh. When will parents grow up, learn to put their kids first, and keep their custody issues out of the courts -- not to mention the tabloids? I guess it's not going to be in 2009.

A year after this post on the housing market and divorce, the situation is even more grim for divorcing couples trying to sell a house or complete an inter-spousal buyout. A New York Times article profiles a number of couples in difficult situations resulting from depreciation in the value of their homes, and notes the trend of couples staying together -- or at least continuing to live together -- as discussed in Divorce and the Economy, Part I, because they simply can't afford to get divorced. I'm not sure how much more there is to say about this -- it's a tough situation and these are tough times. More soon about the effect of the economy on couples divorcing and divorced.

In one of the more bizarre decisions in recent history, an appeals court in Florida has determined that a woman convicted of a crime and imprisoned in a cell with another inmate should have her alimony terminated because she is "cohabiting" with another person.

Technically, that's true, and in fact both the woman and her husband agree that she is cohabiting according to their divorce settlement agreement, which defines the term as "living with another person (not including the parties' child) for a period of 3 (three) consecutive months." However, the trial court in their case found the conclusion that this particular form of cohabitation met the intent of the agreement to be "unthinkably bizarre and at odds with any reasonable interpretation."

The appeals court disagreed, holding that because the woman conceded that the technical definition was met and also because her crime (driving under the influence, leaving the scene of an accident, causing great bodily injury) involved voluntary acts known to bear the risk of incarceration, the interpretation was not absurd. One dissenting judge argued that the happenstence of being assigned a cellmate should not be enough to constitute cohabitation, and I have to throw my lot in with him and the trial judge. It's one thing to stretch the concept of cohabitation to include roommates even when they don't share expenses, but this is another realm of cohabitation entirely.

I posted about military divorce a couple of months ago, and now a new report is out showing that the rate of divorce among Marines and Army personnel is up this year. AP reports that the divorce rate rose from 3.3% to 3.5% in the Army, and from 3.3% to 3.7% in the Marines. The gender breakdown shows that women in the service divorce at a significantly higher rate than men -- female Marines had a 9.2% divorce rate and female soldiers a rate of 8.5%, compared with 3.3% and 2.9% for men in the respective branches. Suicide rates and other mental health problems are also up. The length of service and repeated deployments are obviously taking their toll on our service members.

I'm calling this post Part 1 because I'm expecting this issue to come up repeatedly, though actually, my first post on it was way back in January, when the housing market began to soften and divorcing couples started having trouble selling their most valuable -- and sometimes their only -- asset.   

A recent article by Alex Johnson at MSNBC.com goes farther, saying that the current economic situation "may be doing what pastors, family therapists, and matrimonial counselors have long struggled to accomplish: keeping troubled marriages together." Divorce is expensive, in large part because a divorce means that the resources that once supported one household must stretch to support two. The MSNBC article notes that although there are no hard numbers, marriage counselors say business is up, and divorce lawyers say business is down.

While divorce isn't a desirable result, neither is the necessity that unhappy couples remain together based purely on economic factors. On the other hand, if people who otherwise might have divorced go to marriage counseling instead because it's less expensive and it actually helps, who are we to argue that the bad economy is all bad?

This is a followup on a recent post about divorce in the virtual world. This time, a UK woman is divorcing her husband after she caught him canoodling with another woman in the virtual world called "Second Life." Let's be clear here -- the other woman was not real in the sense of having a physical existence, but was a character in an online game in which players create a parallel universe for themselves, complete with jobs, homes, and activities. Apparently, those activities can include romance -- in fact, the couple involved in this case first met and married in Second Life, according to the UK paper The Telegraph. (And I'm still curious about why so many of these stories come out of the UK...) However, they also married legally in the physical universe, and now they're divorcing, with the husband planning to move on and marry his new sweetheart -- also in the real world -- despite the fact he hasn't yet met her.

And they say gays are making a mockery of marriage.

But seriously, online infidelity is a real risk for married couples, says the American Association of Marriage and Family Therapists. I'm no marriage counselor, but it seems to me that one solution for that might be clear communiation up front with your spouse about what online behavior is acceptable and what you consider "cheating." Another could be to turn the computer off and have some real-life quality time with the person you've pledged your life to. Just a thought.

The issue of child custody and religion has come up in one of this year's most high-profile divorces, between pop icon Madonna and her film director husband Guy Ritchie.

Madonna is a follower of the Jewish mystical religion called Kabbalah, and her belief system doesn't include a Christmas celebration. In years past, the family has skipped Christmas altogether, apparently with Ritchie's consent. But this year, he wants to treat the couple's two children to "a traditional English Christmas," according to the British paper The Mirror, while Madonna wants the kids to be with her on Christmas Day.

What have we learned about custody and religion so far? First, that religious issues are coming up more and more often in custody cases. And, that custodial parents have the right to make religious decisions for their kids -- but that kids who are old enough can have their own opinions on these matters factored in by the courts. In Madonna's case, the divorce is not yet completed, so there's no permanent custody order and it's not completely clear which party has the type of custodial rights that would allow them to make religious decisions for the children. And both of her children with Ritchie (she also has a daughter from a previous relationship) are too young to have their two cents considered.

As always, we hope the parents can work things out and maintain amicable joint custody of their children.

Until now, divorced parents had to negotiate about who got to take the I.R.S. dependent exemption for each of their children. In general, the primary custodial parent has been entitled to the dependent exemption because the child usually lives with that parent more than 50% of the time. But often the non-custodial parent is the higher wage-earner and would benefit more from the exemption, so the I.R.S. would allow the custodial parent to sign a waiver allowing the non-custodial parent to take the exemption instead.

This is still the general rule for dependent exemption purposes, but it's no longer an either/or proposition for all purposes under a recently issued IRS Revenue Procedure. (There's also a very clear explanation of the new guidance on the McGuire Woods website.) Now, the IRS will treat a child as a dependent of both parents for purposes of tax treatment of Medical Savings Accounts (MSA) and Health Savings Accounts (HSA), as well as certain other fringe benefits of employment. For federal income tax purposes, both parents can now treat their children as dependents even if no waiver has been signed by the custodial parent, meaning that both can exclude from their gross income any money taken from an MSA or HSA and used for qualifying medical expenses.

This may seem quite technical, but for parents who use MSAs and HSAs, it's good news. Both parents can benefit from treating the child as a dependent, and they no longer need to negotiate (or argue) about who gets that tax benefit.

What in the virtual world is going on? Take a gander at these recent stories.

First up, a man in England is sentenced to 14 years in prison for killing his wife, from whom he was separated. Why did he do it? Because she changed her status on the social networking site, Facebook, to "single." He felt "humiliated" by this, so he drove to her house in a drug-fueled rage and stabbed her to death in her bed.

Next, a murder-suicide, also in England -- and I thought the Brits were supposed to be so mild-mannered. In this case, the wife apparently posted an entry on Facebook indicating that she was splitting from her husband. He became enraged and killed her and then himself, leaving their two young daughters orphans.

In a story that's less horrifying only because it didn't happen in real life, a Japanese woman "murdered" an avatar that was her husband in a virtual game world, after the husband "divorced" her in the game world. The woman used login information she got from her virtual husband when they were virtually happily married, to go into his account and "kill" his avatar. He complained to police, and the woman is being prosecuted for illegally accessing a computer and manipulating electronic data.