New York Divorce and Family Law Blog

Can Video Surveillance Be Used in a Divorce

Daniel Clement — Tue, 09 Feb 2010 00:51:45 -0500

When one spouse suspects the other of having an affair, the knee jerk reaction is to hire a private detective to get the"smoking gun.” It is permissible to hire a detective to “snoop around” even when the spouse having the affair has an obtained an order of protection against the other.

“The hiring of a professional licensed private investigator in a matrimonial action to gather evidence is for a proper and legitimate purpose.” Anonymous v Anonymous

According to the Court opinon:

The husband had the right to gather evidence up to the date of trial in defense of the matrimonial action and in support of his own counterclaims. The husband was not required to accept that the wife had necessarily ceased her extramarital affair merely upon her assurance to him that she had. In fact, such representation proved to be false as the wife does not controvert that the private investigator disclosed as the result of his investigation that she was continuing to have an affair with Father L. Under the circumstances, the hiring of the private investigator, in and of itself, was not an unlawful intrusion upon the rights of the wife secured by the order or protection.

While obtaining proof of the affair is not objectionable, what you do with it can be problematic. In Anonymous, the husband reluctantly turned over the video of his wife having an affair with the priest to the church-the church wished to investigate the scandalous allegations. But, if the husband had the wife followed and recorded by a private investigator for the purpose of gathering embarrassing material to deliver to her employer with the intention to cause her to lose her employment his conduct according to the court could be considered harassment –“conduct which alarms or seriously annoys another person, and serves no legitimate purpose.”

In sum, it is permissible to obtain surveillance tapes to be used as evidence in court. The surveillance “evidence” cannot be used to simply to embarrass a party or to cause them, for instance, to lose their job without possible consequences.

Couples Who Are "We's" Are Happy

Daniel Clement — Sun, 31 Jan 2010 23:47:45 -0500

Couples who refer to themselves as 'we' are happier than those who say 'I', 'me' or 'you.”

The study conducted at the University of California at Berkley, found a link between the use of pronouns and marital happiness. According to the study, reported in the Daily News and in the Domestic Diversions blog, middle-aged and older couples who used words like “we” and “us” when discussing their marital disagreements experienced less stress than those couple who used the words “I” “me” and “you.”

Not surprisingly, more older couples than middle aged ones identified themselves as “we;” shared life experiences, birth, death and other milestones, probably gave the more senior couples a greater sense of shared identity.

According to the Daily News, earlier studies have shown that “we-ness” versus “me-ness” is a strong indicator of how happy younger couples are.

It would be interesting to see if the pronoun/identity factor is predictive of divorce. Do couples who team up to become a “we” stay together? Conversely, do couples who become polarized “me’s” divorce?

New York's Divorce Law Must Be Changed

Daniel Clement — Wed, 20 Jan 2010 17:03:45 -0500

Last week, the New York Times ran a blistering editorial about New York’s antiquated divorce law. New York remains the only state in the nation that does not have a no-fault or an irreconcilable differences grounds for divorce.

In New York, someone seeking a divorce has to prove that their spouse is guilty of marital fault, that is their spouse committed adultery, treated them in a way that is cruel and inhuman, abandoned them or has been imprisoned. A divorce is also available if the parties have been legally separated for one year.

The absence of a no fault divorce has severe repercussions:

The current rules inflict serious financial and emotional costs. Litigants end up spending thousands of dollars in unnecessary legal fees, and courts devote significant time to airing the painful and highly personal details of a breakup. It is a ridiculous use of judicial resources at any time, but especially in tough fiscal times.

As the Times concludes, the failure to recognize no fault divorce does not save marriages, it just makes it more painful and expensive to end them. Moreover, as I discussed last week, the judicial system also pays a price as judges are forced to turn a blind eye to litigant’s contrived tales of marital fault.

The time has come for New York to join the rest of the nation and permit a no-fault grounds of divorce.

Why is Perjury Condoned in New York Divorces?

Daniel Clement — Tue, 12 Jan 2010 23:03:09 -0500

The absence of no fault divorce in New York has many unintended and unfortunate consequences. Perhaps the single most disturbing consequence is that divorce courts are forced to accept as true, testimony known to be false. That is, as one trial judge, recently pointed out, “it forces judges and special referees who preside over these cases to in effect turn a blind eye — or at least a myopic one — to what is technically perjury.”

In the case of Andrew T. v. Yanna T, the husband was granted an uncontested divorce from his wife on the ground of constructive abandonment- simply stated, the wife’s unjustified refusal to engage in sex for one year preceding the commencement of the divorce. Problems arose because before the divorce was granted the Wife gave birth to a child, which had to be conceived during the period when the parties were allegedly not having sex; the husband claimed he was the father.

Had the case been brought in any other state, a no-fault ground could have been alleged with no fault being assigned. But because New York does not recognize no-fault divorce, litigants are forced to assign blame and, most often, allege that they have been constructively abandoned by their spouse. As noted by the Court, herein is the problem:

. . .when the ground is utilized there is quite often a wide discrepancy between what is said to obtain the divorce and what really has taken place between the parties in the privacy of the marital bedroom.. . .

Although perjury of any kind is not to be condoned, the context in which it arises must be taken into consideration. The sad truth is that New York's insistence on fault-based divorce ends up promoting a disregard for the truth by "fostering and encouraging the embellishment of a spouse's wrongdoing as to grounds, often with immeasurable effects upon a divorcing household.

The problem takes us down a slippery slope. How can a court condone permitting perjury to make out marital fault in divorce but not in other circumstances? Why is it ok to lie about a constructive abandonment, but not the family finances?

The fix is easy. The legislature should recognize a no fault grounds for divorce and then there will be no need for courts to ever condone perjury.

Relationships Move Online and Breaking Up Is Hard to Do

Daniel Clement — Thu, 07 Jan 2010 22:25:09 -0500

Break-ups were always difficult, but, with the advent of social networking, breaking up is now really hard to do.

It used to be a getting a key to your lover’s apartment or a drawer in a dresser was a sign of commitment. When you broke up, you packed up your toothbrush and simply returned the key.

Now, a sign of commitment is exchanging passwords to email or online accounts (both social and financial). In addition, part of the evolution of a relationship entails becoming Facebook friends with your significant other’s friends.

As Laura Holson points out in her article in the New York Times, as every aspect of a relationship has moved online, the whole idea of break up has changed.

Where once a spurned lover could use scissors (literally) to cut an ex out of the picture, digital images of the smiling couple in happier days abound on the Web and are difficult to delete. Status updates and tweets have a way of wending their way back to scorned exes, thanks to the interconnectedness of social media. And breakups, awkward and drawn-out in person, are even more so online as details are parsed by the curious, their faces pressed against the digital glass.

It is common sense that following a break up of a relationship or the commencement of a divorce, passwords to bank and email accounts should be changed. Clearly, you would not want communications from your divorce lawyer discussing strategy to be read by your soon to be ex.

Unfettered access can also be used as a weapon. Just yesterday, when in court, I heard testimony in a case of cyber stalking, where one “heart broken” party possessed passwords to his ex’s personal and business accounts and was being accused of attempting to delete and hide important online files.

Just imagine all the ways a scorned lover could destroy someone’s personal and professional reputation armed with unfettered access to someone’s twitter, Facebook and email accounts.

As Holson points out, “A byproduct of the digital revolution is that trust is being assigned a new meaning.” Given the potential for damage and embarrassment, before sharing passwords, trust should yield to caution.

Give the Gift of Divorce

Daniel Clement — Thu, 17 Dec 2009 16:03:53 -0500

Nothing says I hate your spouse better than a gift certificate to consult with a divorce attorney.

Bruce Carton in the Law Blog Watch, reports that one London law firm, Lloyd Platt & Company, is offering a gift voucher that entitles the bearer to a consultation with a divorce lawyer. The consultation touches upon "all the practical options available to them -- divorce being only one of the options.”

While this is an ingenious marketing ploy, I can only imagine the fireworks at the family gathering when this gift is eventually opened. At a minimum, it will make for a holiday dinner no one will soon forget.

Can You Insure Against Divorce?

Daniel Clement — Tue, 15 Dec 2009 23:34:05 -0500

The success or lack of success of a marriage is apparently now statistically predictable. Since is it predictable, it may soon be possible to insure a marriage against divorce.

MyNewMarkets.com reports that J. Christopher Westland, a professor of information and decision sciences, at the University of Illinois at Chicago, through an analysis of census data, has identified several factors that influence the likelihood of divorce. According to Professor Westland, the factors that put a marriage at risk include:

“Age (younger is riskier); race (Asian is the lowest risk); whether a woman had forced premarital sex (a woman who has been raped has about a 50 percent higher risk of divorcing in the first five years of marriage), and income and education (those with more have less risk).

Divorce insurance would cover the costs of divorce, presumably the legal fees and related expenses. It would not cover the terms of the settlement or the judgment.

With 50% of marriages ending in divorce, insurance companies would be paying out on half of the policies written. Therefore, the insurance would not be cheap.

Still, the question remains would a divorce insurance contract violate public policy. Contracts that promote divorce may be illegal and be unenforceable.

Even if found to be legal, divorce insurance maybe an unnecessary luxury product. Pre-marriage divorce planning may be sufficient to mitigate the economic costs of divorce. Pre and post nuptial agreements can make provision for the distribution of property and the payment of maintenance. Keeping “separate property” separate from marital property will immunize it from a spouse’s equitable distribution claims. All of these precautions would minimize the legal fees in the event of divorce.

Texting: The New Way to Get Caught Cheating

Daniel Clement — Thu, 10 Dec 2009 12:47:16 -0500

There has been much ado, of late, about how text messages are the new lipstick stain on the collar-the telltale sign of an adulterous relationship. Indeed, both Laura Holson in the New York Times and David Wright on Nightline did stories about this phenomenon, which has recently brought down Tiger Woods, Mayor Khame Kilpatrick of Detroit and Senator John Ensign.

For some reason, people feel immune when embracing a new technology – they feel that their use of it for illicit conduct will not be discovered. Texting a lover on a portable device that may be left on your night-table or a kitchen counter for a spouse to innocently discover is an invitation for disaster. For example, as detailed in the Times:

Doug Hampton, a longtime friend and employee of Senator Ensign’s, said recently on the ABC show “Nightline” that he was alarmed after he had borrowed Mr. Ensign’s cell phone in late 2007 to call his wife, Cynthia Hampton, and found her listed as “Aunt Judy.” Mr. Hampton said he found an incriminating text message and confronted the pair about their affair at a Christmas dinner soon after.

People naively think that text messages are not discoverable. The wireless carriers may keep records of messages for a long period after they are sent. Moreover, the person receiving the text may preserve the message for their own purposes. Indeed, Tiger Woods has learned that his lovers are using his messages to them to secure their fifteen messages of fame.

But, in the end, text messages are just the latest tool in the arsenal to catch cheating spouses. Telephone records, emails and charge card receipts have long provided clues to affairs. E-Z passes and Metro-card, too, provide a time stamped trail of where someone has been. It is only time until some spouse finds his significant other “tagged” in an embrace or some other compromising position on someone’s Facebook page.

In the end, the best way to ensure that you do not get caught in an extra marital affair is not to have one.

Tiger's Silence Keeps Wife From Arrest

Daniel Clement — Wed, 02 Dec 2009 17:48:39 -0500

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!

Ten Tips to Deal With Holiday Stress

Daniel Clement — Wed, 25 Nov 2009 00:07:21 -0500

The holidays can be one of the most stressful times. There are financial and familial demands. The stress and pressure can become unbearable and lead to depression.

The Mayo Clinic offers ten tips into dealing with holiday stress.

1. Acknowledge your feelings. If someone close to you has recently died or you can't be with loved ones, realize that it's normal to feel sadness and grief. It's OK to take time to cry or express your feelings. You can't force yourself to be happy just because it's the holiday season.

2. Reach out. If you feel lonely or isolated, seek out community, religious or other social events. They can offer support and companionship. Volunteering your time to help others also is a good way to lift your spirits and broaden your friendships.

3. Be realistic. The holidays don't have to be perfect or just like last year. As families change and grow, traditions and rituals often change as well. Choose a few to hold on to, and be open to creating new ones. For example, if your adult children can't come to your house, find new ways to celebrate together, such as sharing pictures, emails or videotapes.

4. Set aside differences. Try to accept family members and friends as they are, even if they don't live up to all your expectations. Set aside grievances until a more appropriate time for discussion. And be understanding if others get upset or distressed when something goes awry. Chances are they're feeling the effects of holiday stress and depression too.

5. Stick to a budget. Before you go gift and food shopping, decide how much money you can afford to spend. Then stick to your budget. Don't try to buy happiness with an avalanche of gifts. Try these alternatives: Donate to a charity in someone's name, give homemade gifts or start a family gift exchange.

6. Plan ahead. Set aside specific days for shopping, baking, visiting friends and other activities. Plan your menus and then make your shopping list. That'll help prevent last-minute scrambling to buy forgotten ingredients. And make sure to line up help for party prep and cleanup.

7. Learn to say no. Saying yes when you should say no can leave you feeling resentful and overwhelmed. Friends and colleagues will understand if you can't participate in every project or activity. If it's not possible to say no when your boss asks you to work overtime, try to remove something else from your agenda to make up for the lost time.

8. Don't abandon healthy habits. Don't let the holidays become a free-for-all. Overindulgence only adds to your stress and guilt. Have a healthy snack before holiday parties so that you don't go overboard on sweets, cheese or drinks. Continue to get plenty of sleep and physical activity.

9. Take a breather. Make some time for yourself. Spending just 15 minutes alone, without distractions, may refresh you enough to handle everything you need to do. Take a walk at night and stargaze. Listen to soothing music. Find something that reduces stress by clearing your mind, slowing your breathing and restoring inner calm.

10. Seek professional help if you need it. Despite your best efforts, you may find yourself feeling persistently sad or anxious, plagued by physical complaints, unable to sleep, irritable and hopeless, and unable to face routine chores. If these feelings last for a while, talk to your doctor or a mental health professional.

Most of all, have a wonderful thanksgiving.

Social Abandonment: Not a Grounds for Divorce

Daniel Clement — Tue, 24 Nov 2009 00:00:15 -0500

Because New York remains the only state in the country that does not provide for a no-fault divorce, creative lawyers have been forced to “push the envelope” to develop theories using the statutorily recognized grounds of divorce-abandonment, adultery, cruel and inhuman treatment, imprisonment, and constructive abandonment.

In one recent case, the wife alleged that she had been “socially abandoned” by her husband. In Davis v. Davis, the wife of 41 years claimed that her husband:

. . .refused to engage in social interaction with the wife by refusing to celebrate with her or acknowledge Valentine's Day, Christmas, Thanksgiving, and the wife's birthday, by refusing to eat meals together, by refusing to attend family functions or accompany the wife to movies, shopping, restaurants, and church services, by leaving her once at a hospital emergency room, by removing the wife's belongings from the marital bedroom, and by otherwise ignoring her.

The Second Department, however, ruled that a social abandonment does not constitute a grounds for divorce. In order to constitute abandonment, there must be an actual abandonment, a lock out of the plaintiff by the defendant, or a constructive abandonment. A constructive abandonment has:

“. . .been routinely defined as the refusal by a defendant spouse to engage in sexual relations with the plaintiff spouse for one or more years prior to the commencement of the action, when such refusal is unjustified, willful, and continual, and despite repeated requests for the resumption of sexual relations.”

The Court engaged in an exhaustive explanation as to why a social abandonment should not be recognized as a divorce grounds. Perhaps the most interesting reason given was that it would burden the courts with fact finding. Since there would be no bright line as to the appropriate level of “social intercourse,” courts would be forced to engage in a case by case analysis to determine if a social abandonment had occurred. The determination would involve consideration of “family events, meals, holidays, religious activities, spousal expectations, cultural differences, and communications.”

If however, New York recognized a no-fault or an “irreconcilable differences” grounds for divorce, courts could be divested of the need to consider grounds issues. This point was not lost on the Appellate Division, which concluded that:

The interest of the matrimonial bar is borne of its frustration that New York is the only state that requires a finding of fault or the living apart of spouses as a basis for divorce. . . The New York State Matrimonial Commission determined that contesting matrimonial fault is costly to both litigants and the judiciary. An appellate recognition of social abandonment would be a significant leap, in the view of some, toward no-fault divorce in New York, either de facto or de jure. While we are sensitive to the desire of many for a reformation of matrimonial litigation in New York including, but not limited to, the enactment of no-fault divorce grounds, this case cannot provide the vehicle for that goal.

New York's Highest Court Up-holds Same Sex Marriage

Daniel Clement — Fri, 20 Nov 2009 11:22:10 -0500

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.

Divorce Risk Higher When Wife Gets Sick

Daniel Clement — Mon, 16 Nov 2009 23:43:10 -0500

A recent study found that women who were told they had a serious illness were seven times as likely to become separated or divorced as men with similar health problems.

Tara Parker-Pope reports in the Well Blog that:

When the man became ill, only 3 percent experienced the end of a marriage. But among women, about 21 percent ended up separated or divorced. Among couples who split up, divorce occurred, on average, about six months after the diagnosis, although there was wide variability in the timing.

It seems that men run away when health issues arise affecting their spouse, whereas women “hunker down” and deal with the issues. This finding is even more pronounced when the pre-diagnosis “heath of the marriage” is considered.

If couples are happy before the diagnosis, it appears that men are more likely to abandon wives who become seriously ill. If couples are already troubled before a partner becomes ill, the finding suggests that women in unhappy marriages are less likely to proceed with a divorce if their husbands become ill.

The study made no conclusion as to the reason for this phenomenon. A possible explanation could fall along the traditional or stereotypical roles of men and women in a marriage. Wives are typically the nurturers and caregivers in the relationship, whereas husbands are not. However, this theory fails to explain why men abandon an otherwise happy relationship after the diagnosis of a serious illness.

Financial Issues That Destroy The Best of Marriages

Daniel Clement — Tue, 10 Nov 2009 10:51:09 -0500

I have long felt that since money and money issues are the leading cause of divorce, the economic health of a marriage is a good barometer of the overall health of marriage. Ron Lieber, in his “Your Money” column in the New York Times identifies five, often unanticipated, economic stressors capable of destroying even the strongest of marriages.

Often, the tensions brought on by financial issues have been exacerbated by a failure of communication. The parties may be foreclosed from solutions that may have been available if both the husband and the wife were “in the loop” and working together as a team.

Still, the types of problems that could destroy even the strongest of marriages can be classified as follows:

1. Reduced Circumstances.

Every long term marriage goes through the ups and downs of the economic cycles, However, as is prevalent in the current economic environment, couples faced with a reduction in income or the loss in value in assets, are forced to address the cruel reality that they can no longer afford to sustain their present marital lifestyle and must cut back.

As Lieber points out, in order to survive, the couple must re-engage and readjust their “expectations about what married life is going to look like and “redefine a relationship that’s not based around the lifestyle”

2. Complacency and Lack of Involvement

Typically one spouse manages the checkbook, and manages the investments and makes all the financial decisions. When a financial crisis arises, the finger pointing and the blame game begins.

Lieber’s solution is more transparency and conversations about assets, debts and risk.

3 Parental Care Issues

The desire to take care of a parent raises a litany of ethical and /moral dilemmas. The obligation to care for a parent has to be tempered against the cost to the nuclear family.

4. College and Adult Children

College costs are exploding, stretching the finances of the families. A couple’s retirement calculations are generally based upon projections of an empty nest, a household unoccupied by children. Now, adult children, facing their own economic uncertainty want to return “home.” Parents, though well intentioned, disagree about how and when to “cut-off “their children.

5. Uncertainty

While one crisis may not destroy a marriage, doubt and fear, over time, wears down the relationship.

The suggested solution is to be diligent, to live below your means, to save and to create a large emergency fund. Long term financial planning should include college savings for your children and long-term care insurance your parents.

While leaving below one’s means may not be possible or desirable, saving for the rainy day is advised. Communication is essential. A financial crisis can put a marriage in peril, being blindsided will destroy it.

Communicating With Children of Divorce- What Shouldn't You Say?

Daniel Clement — Tue, 27 Oct 2009 22:22:24 -0500

As difficult as divorce is for the parties, it is far more traumatic for the children. When parents divorce, every aspect of the children’s life is up-ended as they watch their parents prepare to go to war against each other.

Children, who should enjoy the unconditional love and affection of both parents, may be drawn into the battle as their loyalty is tested. A showing or expression of affection for one parent could be taken as a sign of betrayal to the other. Children must stagger through an emotional minefield while their parents battle.

Although it seems like common sense, in order to minimize the children’s battle scars, parents need be mindful of the messages they are sending to the children. In particular, they need be cognizant of not only what they are saying, but how they are saying it. Of course, some subjects are just off limits.

The Texas Family Law Blog offers an instructive guide of things not to say to children and I have interposed my thoughts.

1. Do not say “Nothing is going to change.”

Be honest with you children and don’t lie. The truth is probably everything that matters to the children is going to change- the children’s relationship with each of their parents is going to be different. The family will no longer be intact and the children may even have to move and change schools. The economics of the family may change.

Perhaps offer that change offers new opportunities and that change does not have to be bad.

2. Do not talk negatively about the other parent to the children.

Though you may be tempted to vent your frustration to your children, don’t!
If your spouse is unloving, cheap or selfish, in time your kids will figure it out on their own. In the interim, the children should be directed to love and respect both parents

3. Do not blame the divorce on the children or your spouse.

Divorce is never just one person’s fault and it is certainly not the fault of the children.

4. Do not discuss the details of the case with the children.

There is no reason for the children to know the details of the divorce. Court documents should not be left on the kitchen counter for children to pick up and casually read.

5. Do not use the children to spy on your ex.

When the children come back from visiting your ex, don’t interrogate them on what the ex said about you or what they did. They children should not be your messenger or your spies.

6. Do not argue with your ex in front of the children.

Children have two parents. They are entitled to share the love and affection of both. In the end, parents should not do anything to prevent that from happening.

Lies: Good or Bad for a Marriage?

Daniel Clement — Tue, 20 Oct 2009 23:00:36 -0500

Not all lies are equal or bad, so says Elizabeth Bernstein in the Wall Street Journal.

No one would ever claim that lies about infidelity would be acceptable. But, as Ms. Bernstein urges, “the fibs and feints and little white lies that serve as a social salve and help a relationship run smoothly.”

Some of the acceptable reasons, to fib, she argues, include- “to avoid conflict, to gain approval, to save face or just to be kind.”

Every man learns, for instance, that the answer to the question “does this outfit make me look fat” is an emphatic “No!” Perhaps this is not a lie- maybe the rose colored glasses from which a husband views his wife takes ten pounds off her backside.

Asking do I look fat or which outfit looks better on me calls for an opinion. But, would it be acceptable to lie about a fact?

One of the major reasons for divorce is that there is a loss of trust. Where do you draw the line between little inconsequential lies and the complete betrayal of trust? If the lie is of little consequence, why even bother to lie? If the entire foundation of the marriage is based on lies, isn’t the marriage destined to self-destruct?

Get Your Same Sex Divorce Now- New York's High Court Considers Validity of Same Sex Marriage

Daniel Clement — Wed, 14 Oct 2009 11:02:44 -0500

Yesterday, the Court of Appeals, New York’s highest court took on the issue of gay marriage. One of the issues to be decided was whether to continue to recognize same sex marriages legally performed in other jurisdictions.

As previously discussed, New York presently recognizes, as valid, marriages performed in Canada, Massachusetts, Vermont and the other jurisdictions that permit gay marriage.

The Court could decline to recognize foreign marriages and await legislative action on the issue. If New York does not recognize the marriage as valid, a New York same sex divorce may no longer be an option.

Given this you, any same sex couples who have valid foreign marriages and are considering divorce should consider expediting the process and seek the divorce before the Court renders its decision.

See Nicholas Confesore's article in the New York Times for coverage of yesterday's proceedings.

Christie Brinkley and Peter Cook, Round 2- Is the Custody Fight Over

Daniel Clement — Wed, 14 Oct 2009 00:20:58 -0500

The custody fight of Christie Brinkley and Peter Cook reared its ugly head again.

Last year the case settled after several days of lurid testimony about Peter Cook's affair with a teenage store clerk and revelations that he spent thousands of dollars downloading pornography.

Sophia Chang and John Valenti report in Newsday that the in the current dispute:

Cook wanted Brinkley found in contempt of court for allegedly failing to deliver their son's passport to his house in November, which, Cook said, caused Jack to miss a school trip to Egypt. In return, Brinkley's attorneys filed a countermotion to hold Cook in contempt for discussing the marriage on talk shows in violation of a confidentiality agreement.

Though, the parties were apparently able to resolve their dispute, they learned that even after a divorce cases are “settled,” agreements involving custody and visitation of children are not final.

To often, parties are so antagonistic towards each other that they rigidly adhere to custody and visitation schedules that are not workable. Rather than being flexible and mature, some parents use a visitation schedule like a sword-in effect, to deprive the other parent ( and the children) of quality bonding time.

Parenting time schedules cannot be written in stone. School vacations, extra-curricular activities and special occasions may not coincide with the provisions of a settlement agreement written weeks or months, never mind years earlier.

Divorced parents do not have to love or even like each other. But as Peter Cook, sincere or not, summed up to the Associated Press what is required is to “remove conflict so that we can go on about our lives. I respect my children's time with their mom, and all I ask is that she respect their time with me."

Parents Cannot Contract Away Child Support Obligations

Daniel Clement — Tue, 06 Oct 2009 23:04:56 -0500

A finding of emancipation terminates the parental obligation to pay child support. For this reason, the issue is oft litigated.

The typical divorce settlement agreement provides that child support will terminate on the happening of an “emancipation event” which is defined by parties’ settlement agreement, but generally includes the child’s death, marriage or entry into the military.

Many agreements also provide that a child should be deemed emancipated if the child enters the workforce on a full time employment. However, the Appellate Division, First Department ruled last week that a child’s full time employment alone does not constitute an emancipation event; the child must also be fully self supporting and economically independent.

In Thomas B.v. Lydia D, the parent’s agreement provided for the termination of support, without any consideration of the son’s economic independence. Support terminated only if the child was employed on a full time basis.

The Court ruled that this provision was contrary to law and public policy.

The parties cannot contract away the duty of child support. "Despite the fact that a separation agreement is entitled to the solemnity and obligation of a contract, when children's rights are involved the contract yields to the welfare of the children.“ The duty of a parent to support his or her child "shall not be eliminated or diminished by the terms of a separation agreement" nor can it be abrogated by contract.

Whether a child is economically independent requires a fact specific inquiry. Even if a child is working but relies on a parent for significant economic support such as paying for utilities, food, car insurance, medical insurance or clothing, the child cannot be considered economically independent, and thus is not emancipated This is true even where the child is residing with neither of the parties, so long as the child is still dependent on one of the parties for a significant portion of his or her support.

Couple Forced to Divorce For Financial Survival

Daniel Clement — Wed, 16 Sep 2009 22:32:23 -0500

The Huffington Post reported on a sad and frightening phenomenon- elderly couples forced to divorce to obtain relief from medical bills and to qualify for social security benefits.

The article details the plight of Mary McCurnin and her husband Ron Bednar. In 2003, the couple declared bankruptcy after their insurance covered only 10 percent of the treatment costs for her breast cancer and his intestinal bleeding. In 2004, McCurnin's breast cancer returned, and Bednar underwent open heart surgery.

The couple is broke and unemployed. Mary, however, was previously married. Her first husband pre-deceased her and, but for the fact that she is now married to Ron, Mary would be entitled to receive her social security survivor’s benefit from her previous marriage. The Social Security Administration told her, she cannot have the survivor benefit if she's married to someone else.

So, in order to qualify for the survivor’s benefit, she is divorcing Ron.

She could divorce him now to collect short-term benefits on her earlier husband, and then at some later point after age 60 remarry him without it affecting her widow's benefits," said Lowell Kepke, a spokesman for the San Francisco regional office of the Social Security Administration. "Congress put that in precisely to stop encouraging elderly couples from not getting married."

But the widow's benefits aren't the only reasons for the divorce. McCurnin and Bednar could see a tax advantage. A married couple filing joint tax returns can earn less before their Social Security benefits are taxed than two people filing separately.

To me, it is absurd that a committed and happily married couple must divorce for their financial survival. As the population ages and in the absence of some type of healthcare reform, will couples be forced to divorce as a means of medical expense planning in order to protect their jointly accumulated savings? If so, the sad case of Mary McCurnin and Ron Bednar will be the tip of the iceberg.