Get Married: Why Couples Should Get Married If Only to Get Divorced

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There is an undeniable decline in marriages (22% between 1960 and 2016 according to the Pew Research Center).

While my viewpoint as a divorce attorney may seem self-serving when I encourage couples to marry (if only to get divorced later), rest assured it comes from a sincere place.

I have had many people tell me that they were in a long-term relationship with their spouse prior to getting married and they are now seeking a divorce for their short-term marriage. Others never married at all but have been in a relationship for many years.

Why this matters: In most states, including New York where I practice, the law rewards lower-earning spouses in lengthy marriages, and makes it difficult for individuals who are either unwed or had a short-term marriage. This goes for both alimony and equitable distribution.

This is not to say it cannot be done. New York, for instance, will award “palimony” (alimony for those who never married) in certain situations where there was an agreement between the couple that one would provide a specific sum to the other on a regular basis. But it must be proven in court, just like a contract. On the other hand, maintenance (alimony) in New York is a presumed obligation, making it much easier to obtain where appropriate.

As any lawyer will say, each situation is different. However, as of right now, the law is less forgiving to unwed couples when it comes to asset distribution as well.

Unless there is a written agreement (such as a pre-nup) stating otherwise, the creation of marital property happens automatically. Many unwed couples, and even those who are married, are unaware that retirement savings like 401(k)s and pensions are marital property subject to division.

The reasons why couples choose not to marry is understandable. For starters, the landscape of marriage in the last fifty years has been bleak, with a high probability of divorce leading to a glass half empty sort of outlook. Articles from the New York Times, Time Magazine, and Bloomberg, also state that there are less marriages among Millennials because they are pickier, more cautious, and take financial considerations into the mix.

With obtaining a divorce, however, there may be a psychological sense of closure. While just a piece of paper, a judgment of divorce signifies a definitive end in a relationship. Human emotion is complex. In some situations, a former partner may continue to pursue the affections of the other, if only because they do not believe the romance is over. Obviously, this still can occur with or without a divorce judgment. But a divorce is a period, not an ellipse and not a semicolon.

Divorces can also be celebrated. For some time there has become a trend in divorce parties (Six Ideas for an Awesome Divorce Party). Recently I came across an article about an ex-wife in Texas blowing up her wedding dress (Big bang: You could feel this Texan’s divorce being finalized from ’15 miles away,’ video shows).

 

**This post contains attorney advertising. Prior results do not guarantee a similar outcome. **

Rewarding Revenge: Husband Sues Wife’s Lover and Wins $8.8 Million

 

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For some it would be a dream, literally played out during sleepless nights: Suing your husband’s mistress, making her squirm before a packed courtroom and having the audience gasp as you point your finger at her and say “Isn’t it true, you knew he was married!” This might be justice, and being financially awarded for the pain and humiliation might seem fair.

Recently, in North Carolina, Keith King sued his wife’s paramour and won – $8,800,000 to be exact. The grounds of the lawsuit being Alienation of Affection and Criminal Conversion.

To win a claim of Alienation of Affection, plaintiff must show that: (1) there was marriage with genuine love and affection existing; (2) that the love and affection was alienated and destroyed; and (3) the defendant through his wrongful and malicious acts caused the alienation and destruction. Criminal conversion (synonymous with “adultery”) only requires proof of an actual marriage, and sexual intercourse between defendant and plaintiff’s spouse.

Currently, 6 states recognize Alienation of Affection as a cause of action (Hawaii, Mississippi, North Carolina, New Mexico, South Dakota, and Utah).

New York is credited with being the first state to establish the Alienation of Affection causes of action in 1864. Nearly every state followed suit and adopted it.

By 1935 however, the New York State Legislature abolished Alienation of Affection (along with other similar claims) by enacting what is referred to as the “Anti-Heart Balm Statute.” The original language of the statute made it explicitly clear that the reason for abolishing Alienation of Affection claims was due to:

“having been subjected to grave abuses, causing extreme annoyance, embarrassment, humiliation and pecuniary damage to many persons wholly innocent and free of any wrongdoing, who were merely the victims of circumstances, and such remedies having been exercised by unscrupulous persons for their unjust enrichment, and such remedies having furnished vehicles for the commission or attempted commission of crime and in many cases resulted in the perpetration of frauds.” (Civil Practice Act § 60-b).

This language disappeared in the recodification and streamlining of the Civil Practice Act in 1962 to what is now the Civil Practice Law and Rules (CPLR). Today, the statute just states that: “The rights of action to recover sums of money as damages for alienation of affections, criminal conversation, seduction, or breach of contract to marry are abolished …” (Civil Rights Act § 80-a).

Ironically, North Carolina, briefly abolished Alienation of Affection claims when their intermediate appellate court ruled that it was doing so in the 1984 case: Cannon v. Miller, 322 S.E.2d 780 (N.C. Ct. App. 1984). In their lengthy decision, the court reasoned that the “potential for abuse, the lack of deterrent effect, the difficulty determining causation, and the inappropriateness of recovery for emotional harm predicated on property theory” and “chance of blackmail” made the abolition justifiable.

The highest court in North Carolina disagreed, and reversed and remanded the decision stating that the intermediate appellate court “acted under a misapprehension of its authority” to abolish Alienation of Affection in the state. Cannon v. Miller, 327 S.E.2d 888 (1985). It should be noted that this opinion was a mere three paragraphs long, with no explanation as to why the state should continue hearing such lawsuits.

New York (and most states) do recognize Loss of Consortium claims in the context of derivative personal injury lawsuits. In such cases, family members are compensated for impairment of their intimate relationship with a tortiously injured loved one. A spouse may recover for the loss of services, companionship, or society of a wrongfully injured or deceased spouse. Consortium includes “such elements as love, companionship, affection, society, sexual relations, solace and more.”

Courts have recognized claims for Loss of Consortium between parents and children. However, in New York, the loss a parent may recover from must really come down to loss of services, i.e. financial contributions to the household or medical expenses paid.

One thing is for sure, society has evolved and the law continues to adapt. Alienation of Affection stems from a long history of antiquated property concepts. For about two hundred years in this country, marriage was defined by the doctrine of coverture: A wife’s legal identity was merged into her husband and therefore she could not enter into business contracts, own property, or sue others. She was her husband’s property. New York did pass the Married Women’s Property Act in 1848, which enumerated property rights of married women, but New York did not recognize a husband was guilty for raping his wife until 1984 in the case: People v. Liberta, 64 NY2d 152 (1984).

How we reconcile the difference between Loss of Consortium and Alienation of Affection is a matter of physical injury leading to a loss of income versus emotional ownership and possession of another.

 

**This post contains attorney advertising. Prior results do not guarantee a similar outcome. **

Special thanks to Shayna Williams, Esq., Mindy Betita, and Victoria Frebrer for contributing to this discussion.

Sources:

https://scholarship.law.unc.edu/cgi/viewcontent.cgi?referer=&httpsredir=1&article=3006&context=nclr

https://www.cnn.com/2018/07/31/us/north-carolina-adultery-law-trnd/index.html

Helsel v. Noellsch (Mo. Sup. Ct. 2003) https://caselaw.findlaw.com/mo-supreme-court/1352874.html

https://en.wikipedia.org/wiki/Civil_Practice_Law_and_Rules

People v. Liberta, 64 NY2d 152 (1984) https://h2o.law.harvard.edu/collages/33260

Santoro ex Rel. Santoro v. Donnelly, 340 F. Supp. 2d 464 (SDNY 2004) https://www.courtlistener.com/opinion/2452739/santoro-ex-rel-santoro-v-donnelly/

Hernandez v. Robles, 805 NYS2d 354 (2nd Dep’t 2005) https://casetext.com/case/hernandez-v-robles-24

https://memory.loc.gov/ammem/awhhtml/awlaw3/property_law.html

Douglas E. Abrams, Naomi R. Cahn, Catherine J. Ross, David D. Meyer, Contemporary Family Law (3d edition 2006)

Blackstone (1769)

Who Gets Custody of the Frozen Embryos?

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Beginning July 1, 2018 Arizona implemented a policy that custody of disputed embryos must be given to the party who intends to help them “develop to birth.”

Last month in June, here in New York, the NYC Appellate Division of the Supreme Court awarded the husband in a divorce proceeding the remaining frozen embryo in the case Finkelstein v. Finkelstein. This decision was made using different reasoning than Arizona’s new law.

In 1998 the New York Court of Appeals opined in Kass v. Kass that the general rules of contract interpretation shall be used to enforce in vitro fertilization (IVF) agreements.

In Finkelstein v. Finkelstein, the court, quoting the Court of Appeals, stated that they “are required to choose the construction that will carry out the plain purpose and object of the agreement.” Since the husband exercised the contract provision to withdraw his consent in carrying out the IVF (prior to implantation), the remaining embryo could not be used by either party.

Arizona has created a hard and fast rule. Conversely, in New York, it depends on what the prior agreement states. In this way there is some flexibility as to what the appropriate outcome will be.

 

**This post contains attorney advertising. Prior results do not guarantee a similar outcome. **