Recently in Property Division Category

March 4, 2009

Ex-Husband Can't Have Kidney or Money for It

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.
January 7, 2009

Divorce and the Economy, Part 2: The Housing Market, Again

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.
December 3, 2008

Divorce and The Economy, Part 1

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?

October 16, 2008

Oregon Wife Wins Right to Dispose of Frozen Embryos

Following a general trend in an emerging area of divorce law, the Oregon Court of Appeals ruled on October 8 that a divorced wife has the right to dispose of frozen embryos that she and her ex-husband created during their marriage.

The couple's agreement with the facility storing their embryos designated the wife as the person with the sole legal right to make decisions about them. The appeals court held that the agreement was binding on the divorcing husband and wife, and ordered that the embryos be destroyed at the wife's election. The court rejected the husband's argument that the embryos were alive, and followed other courts in finding that one spouse does not have the right to impose parental obligations on the other.

A blog post at www.divorce-lawyer-source.com says that there are more than 100,000 stored embryos across the country, and I agree with the assessment in that article that this issue is going to keep coming up in divorces as more and more couples use alternative reproductive technology to have children.

October 13, 2008

Dividing Property Equally -- Taking it to the Extreme

Think your divorce settlement divides everything equally? You've got nothing on the Cambodian couple who literally divided their property in half by sawing their house in two, right down the middle. The wife is keeping the half that's staying on their land, and the husband hauled away his half, mostly in the form of debris and materials. You can see a video of the result here.

This reminds me of the Brooklyn couple who both refused to move out of their home during their divorce, and ended up living in separate parts of the house after a judge ordered them to put up a wall.

Here's hoping your spirit of compromise was a little better-developed than that of these folks, who have taken the idea of equal division of property to the next level.

October 2, 2008

Divorce and the Military

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There are over a million active duty service members in the U.S. Armed Forces today, many serving in high-stress areas like Iraq and Afghanistan. Perhaps surprisingly, the rate of divorce generally among service members is comparable to that in the general population (although there was a sharp increase between 2001 and 2004, a period when deployments increased significantly). But within the military, women divorce at nearly twice the rate of men. There's lots of speculation about why in this article at Divorce360.com, but no solid answers.

Numbers aside, the reality is that divorce raises special issues for military spouses in almost every aspect of the divorce process, including calculating support, dividing property, establishing a parenting plan, and dealing with retirement and insurance benefits. The Armed Services Legal Assistance Office provides some help for military families going through divorce, and there are websites that offer free legal information as well. Also check out Nolo's Essential Guide to Divorce -- the updated 2nd Edition has a new chapter on military divorce.

August 20, 2008

Divorce as an Environmental Issue?

A recent article in Australia's National Newspaper argues that divorce is "not just heartbreaking -- it's bad for the environment." Can this be true? And is there anything to be done about it?

Like the United States, Australia has a high divorce rate; approximately 40 per cent of marriages there end in divorce. Matthew Warren's article in the business section of The Australian points to the doubling of households and the resulting inefficient use of resources that occurs when couples divorce. The number of people living in a household, he says, is the biggest single determinant of how much energy and water are used and how much waste is generated. Even though it seems counterintuitive, more people in the household means that fewer resources will be used.

Of course, owners of rental properties, suppliers of small electronics, and furniture stores will benefit when a divorcing family needs to duplicate its household furnishings. But consuming more of these items isn't good for the environment, either. The mantra of "reduce-reuse-recycle" is difficult to apply when two households are being created where once there was one.

Unfortunately, there's no simple, immediate solution to this problem. People who can't stay together for the sake of their children surely won't be able to stick it out for the sake of the environment, either. But as Warren argues, we can start thinking about the bigger picture and considering options for creating more efficient, environmentally sustainable societies.

August 15, 2008

Divorce Financial Planners Turn 10

Do you even know what a Divorce Financial Planner is? If not, you're not alone -- Divorce Financial Planners (sometimes also called Divorce Financial Analysts) are a relatively new addition to the kinds of assistance available to people going through a divorce. In fact, the profession has only existed for 10 years, but it's growing as a result of more frequent use of DVPs by divorcing parties, divorce lawyers, and mediators.

A Divorce Financial Planner can help divorcing parties assess their situation and make smart decisions about dividing their assets and assigning their obligations. DVPs look at your entire financial picture, taking into account not just what looks like a fair division in the present, but also the future ramifications of potential settlement scenarios. They'll consider tax consequences, the present vs. future value of money, each party's retirement needs and career plans, and whatever else needs to be factored into your financial planning.

Not everyone needs a DVP -- if your assets aren't complex and you haven't been married long, you probably don't need the comprehensive advice. But if you've got a house, more than one retirement plan, and investments -- and especially if it feels overwhelming to you to consider all the possible options for settlement -- you might benefit from some professional help. If you're cooperating in your divorce by using mediation or collaborative practice, you can share the cost by having one DVP assess your situation. 

To find a DVP, ask your attorney if they're using one. Or, go to the website of the Association of Divorce Financial Planners or the Institute for Divorce Financial Analysts and find a DVP in your area.   

August 11, 2008

Insurance Proceeds Awarded to Ex-Wife

A California police officer left his new wife in the lurch when he failed to update the beneficiary on his life insurance policy after his divorce. When Officer Jerry Ortiz was killed in the line of duty in 2005, he had been married for only three weeks to his new wife, Graciela. Four months before that, his divorce from his first wife, Gloria, had become final.

Right after the divorce was finalized, Officer Ortiz's attorney sent him a letter reminding him to update the beneficiary designations on any insurance policies. We can only imagine what kept him from doing so -- maybe his pending remarriage, maybe his demanding job, maybe the very common reluctance to think about his own mortality. Whatever the reason, Ortiz never made the change -- and when he died in June of 2005, the designated beneficiary for his life insurance policies, with benefits totaling half a million dollars, was Gloria, his first wife.

The life insurance companies did what insurance companies do in these situations -- they deposited the money with the clerk of the court and filed a lawsuit asking the court to decide who should get the money. The federal court decided that the insurance proceeds were Ortiz's separate property after the divorce, and that he expressed his intention to name Graciela as his beneficiary (to his attorney), and awarded the money to be split between Graciela and Ortiz's two sons. But the Ninth Circuit, a federal appeals court, reversed the decision and held that the divorce judgment did not extinguish Gloria's rights and that because Ortiz did not take any action to change the beneficiaries, Gloria was entitled to the insurance money.

The moral of this story could not be more clear: After your divorce, make absolutely sure you have taken care of the details. That means updating your insurance policies, changing title to your property, making a new will, closing all joint accounts, and following up on anything else you need to do to comply with your settlement agreement or final judgment. Don't wait, or your hard-earned assets could wind up exactly where you don't want them to be.  

April 21, 2008

YouTube Divorce Video Takes the Low Road

divfam042108.jpgBy now you've probably heard about or seen Tricia Walsh-Smith's YouTube video, right? If not, here's the story: Walsh-Smith, a British actress-playwright, has been married for nine years to Philip Smith, president of the largest theatre owner in New York City, the Schubert Theatres. Now, she says, he's trying to kick her out of their Manhattan apartment and leave her destitute. Under their prenuptial agreement, she's entitled to half a million dollars and their house in Florida upon divorce, but she's trying to get that set aside so that she can fight for more of his assets.

Now, she's brought her case to the Internet with a video that has garnered nearly three million hits since it was posted on April 10. In it, Walsh-Smith explains her predicament, gives a tour of the apartment she's being asked to vacate, discloses intimate details about her husband to his assistant over the phone, shows photos from her wedding album, makes disparaging comments about her husband's family, and expresses her distress and bewilderment about the situation. In media mentions from CNN, MSNBC, ABC, and The Los Angeles Times, experts express various opinions about what it all means. Is it the advent of a new weapon in the divorce wars? A plan that will backfire when the judge is appalled by the tactic? A means to gain public sympathy and pressure Mr. Smith into doing what Ms. Walsh-Smith calls "the right thing?" A way for a disempowered wife to regain some control?

Or, as The L.A. Times says, perhaps it is merely "a performance piece by a theatre professional"? I'm inclined to agree with this view, and the whole thing leaves a bad taste. As an advocate of communication, collaboration, and making every effort to take the high road even in the painful and difficult event of a divorce, it's hard to condone something so clearly designed to humiliate Mr. Smith in the service of revenge and financial gain. The low road seems to have hit a new low.