Nolo’s Divorce, Custody & Family Law Blog

After years as the last holdout for mandatory fault divorce, New York finally has a no-fault divorce law. Governor David Paterson signed the new law on August 15, bringing New York in line with the rest of the 50 states in allowing married couples to divorce without one spouse having to take the blame.

A no-fault divorce means that spouses can end their marriage by mutual consent--or allows one spouse to proceed with the divorce whether the other spouse agrees or not, but without having to accuse the other spouse of cruelty, adultery, abandonment, or imprisonment. The old fault rules meant that even spouses who both wanted a divorce, and who could otherwise proceed amicably, had to lie in court about one or the other committing these bad acts.

The new law takes effect September 1, 2010.

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.