Westchester Divorce Blog

Q:            I was severely injured in a car crash.  Among other things, my leg had to be amputated and I am no longer able to have sexual relations.  I can no longer work, and now my wife has asked for a divorce.  She also wants to get a portion of what we will receive from the company we have filed suit against.

Is she entitled to receive anything beyond her claim for loss of consortium and our resulting divorce?

A:            In terms of tort law, you are each able to claim damages for loss of consortium resulting in loss of intimacy and your divorce.  You are also able to claim damages for past, present and future loss of earnings, loss of wages, and medical expenses.

In terms of divorce law, your wife has no entitlement to a share of the award you receive for past, present, or future pain and suffering, or your future lost wages and medical expenses.  That means that you should have your personal injury lawyer agree with the defendant’s lawyer to assign a specific dollar amount to each element of damages in a settlement.

If the case goes to trial, make sure your lawyer asks the judge to instruct the jury to specify the amount awarded on each part of the damages and those of your wife.  If the judge does not, the jury will make a general or lump sum award.

If you receive a general award, then you will be required to argue to the divorce judge about the amount that should be attributed to your past and future pain and suffering, future wages, and medical expenses.

June 30th 2008 Posted to Finances
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Our good friend, Michael Sherman, an Alabama divorce lawyer, mentioned this interesting study on his blog (Alabama Family Law Blog):

June 26th 2008 Posted to Custody and Visitation
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Christie Brinkley and Peter Cook’s upcoming divorce trial will remain open to the public, a New York judge ruled recently.

Acting State Supreme Court Judge Mark D. Cohen said in a five-page decision that he is keeping the trial open because “open courtrooms, in general and in divorce actions, may provide a basis for societal education.”  He added: “The required high burden of compelling reasons to close the courtroom has not been met.”

The ruling goes against a motion brought by the attorney for the children and supported by Cook.  Attorney Theresa Mari, on behalf of the children, argued that some of the evidence revealed at trial could damage her two clients – Jack, 12 and Sailor, 9.

One cannot help but wonder:  Does the public’s insatiable appetite for celebrity gossip really outweigh Jack and Sailor’s right to be spared the tawdry details of their parents’ marital troubles?  And, if it does, what does that say of the principles we value as a society?  

The trial is the result of a two-year legal battle between Brinkley (54) and Cook (49).  Custody, visitation rights, and child support of Sailor and Jack will be the central issues of the trial.  Jack is Brinkley’s son from her previous marriage to Richard Taubman.  Cook adopted Jack.

Brinkley has been married four times, and also has a 22-year-old daughter Alexa Ray Joel, whose father is Billy Joel.

Brinkley filed for divorce from Cook in July of 2006 after 10 years of marriage, alleging infidelity with his 18-year-old assistant, Diana Bianchi.

June 25th 2008 Posted to Celebrity Divorce
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The wife of a man from SeaTac, Washington, who disappeared on February 13^th has filed for divorce, according to the records of the King County Superior Court.

Since he called home from work the day before Valentine’s Day, no one has heard from 28-year-old Nicholas Francisco.  Five days later, his 1992 Toyota Paseo was found abandoned at a condominium complex by police.  Initially, his wife feared that he may have been killed or kidnapped, but sheriff’s detectives found no evidence of foul play, and no trace of him has been discovered since.

On May 28^th, nearly four months after his disappearance, 28-year-old Christine Francisco filed for divorce in Superior Court. The couple has a four-year-old daughter, a two-year-old son, and an unborn child.

In a custody request for her children, the petition filed by Christine Francisco claims “willful abandonment that continues for a period of time,” in addition to a “history of acts of domestic violence . . . or an assault or sexual assault” which resulted in her sustaining bodily harm or caused or to fear being harmed.

Original Source:  seattlepi.com, June 17, 2008

June 24th 2008 Posted to Miscellaneous
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Recently, the highest court in the State of Virginia ruled that the State must enforce a court order from Vermont that awarded child visitation rights to a mother’s former lesbian partner.

The Supreme Court of Virginia rejected the claim of Lisa Miller that a lower court improperly ignored a Virginia statute and a State constitutional amendment prohibiting same-sex unions and the recognition of such arrangements from other States.

The ruling was in favor of Janet Jenkins, who had been fighting for visitation rights since the 2000 dissolution of her and Miller’s civil union in Vermont.  Miller gave birth to her daughter, Isabella, in 2002.

After the split, Miller renounced homosexuality and moved to Virginia with her daughter, from where she has been fighting Jenkins’ visitation efforts.  However, according to the Virginia Supreme Court, a federal law that prevents parents from crossing state lines in order to avoid custody rulings, requires that Vermont’s order be enforced in Virginia. 

Original Source:  Gay & Lesbian Times, June 12, 2008

June 23rd 2008 Posted to Gay & Lesbian
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Robin Williams and his estranged wife Marsha Garces Williams have pledged to be “honest, cooperative and respectful” during their divorce proceedings, according to court papers released in May.

The couple signed an agreement spelling out their goals, including promises to try to avoid courtroom clashes, and to keep their children’s interests at the forefront, say the papers filed in San Francisco Superior Court.

“We will strive to be honest, cooperative and respectful as we work in this process to achieve the future well being of our families,” says the agreement.  “We commit ourselves to the collaborative law process and agree to seek a positive way to resolve our differences justly and equitably.” 

Williams, 56, and Garces, 51, filed for divorce in March after 19 years of marriage, citing irreconcilable differences. The couple has two children – Zelda, 18, and Cody, 16.

Recently, Zelda to People Magazine, “I just want my parents to be happy.”

Maybe there is a lesson here for, Alec Baldwin, Christy Brinkley, and Bill Murray . . .  

Original Source: People.com 

June 20th 2008 Posted to Celebrity Divorce
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Here is Part 3 of the American Academy of Matrimonial Lawyers’ publication, Stepping Back from Anger:

Helping children heal begins before any legal papers are filed, with how and when parents tell their children about their decision to break up. 



The first words children hear about the divorce should be from their parents, as soon after the decision is made as possible.  It is best not to wait until one parent has already moved out of the house. 



Ideally, both parents should be there when the children are told.  If the children are roughly the same age, they should be told at the same time. If there is a substantial age difference, it can be useful to tell them together, and then have separate meetings with the children individually, adapting each explanation to each child’s level of understanding. 



When informing children of an impending divorce, parents should not divulge such details as infidelity or sexual deprivation, and they should not blame one parent or another.  One possible approach is to present the divorce as a solution to the family’s problems, an end to the fighting and tension that have filled the home with anger. 



Honesty is a crucial element in informing children of the split.  They should be told that their lives will change, and that some things, like spending time with the parent they’re not living with most of the time, will be harder. 



Children should be encouraged to talk about their feelings, either with their parents, their friends, or a counselor. 



It is best that parents not ask their children to choose with which parent they would like to live.  If they have an opinion on the matter, it will likely come out unprompted.  If they do not, they should not be put in a position of choosing between one parent and another. 



One custody option to consider is joint custody.  It allows both parents an equal say in decision-making on the child’s behalf, even if physical custody of the child is not 50/50. 



Although sharing parenthood so intimately with someone a parent no longer shares a marriage can be difficult, it is one of the best ways that parents can show their love for their child. 



Most children - in fact, most adults - still dream of being part of a Rockwellian family, with a mommy and a daddy, several happy children, and a dog, all living blissfully under one roof.  But as the American divorce rate skyrockets, that dream is becoming a reality for fewer and fewer families. 



In its place, for both parents and children, are opportunities.  By stepping back from their own anger, divorcing parents can move closer to what should be a common goal for their children - maintaining a nurturing environment and minimizing the potentially traumatic byproducts of the so-called “broken home.” 

June 19th 2008 Posted to Custody and Visitation
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Here is part 2 of the American Academy of Matrimonial Lawyers’ must-read guide for divorcing parents, Stepping Back from Anger:

Roughly one-third of the children of divorce lose contact with one of their parents, depriving them of years of adult guidance, support and love.  But even many of those who remain in touch with both parents are not any better off, as they continue to be tormented for years by their parents’ continual arguing. 



And the longer the parental conflict continues, the more serious is the psychological damage to the child.  Many children respond to such stress by turning off their feelings and walling up their emotions.  Those children are not only deprived of the joys of childhood, but they often find themselves emotionally adrift as adults. 



It’s important for parents to remember that their actions during their divorce can have long-term consequences they might not intend.  A mother who forbids her daughter from seeing her adulterous father, for instance, is laying the groundwork for her daughter to be distrusting of all men, thus potentially sabotaging the child’s intimate adult relationships. 



Parents must also realize that children often interpret anger between spouses as anger at the children.  That is because children are aware, even at an early age, that they are “part mommy,” and “part daddy.”  When divorcing couples disparage each other in their children’s presence, their developing self-esteem can take a battering. 



Though divorce is never easy on children, such crises are often opportunities in disguise.  Because a child’s emotional health after his parents’ divorce is so dependent on his parents’ behavior during the divorce, the separation process is a good time for parents to reflect on their children’s well-being and, if necessary, seek out professional help for themselves and their children. 



It may even be necessary for children to spend some time alone with a counselor who might detect hidden messages in a child’s artwork or storytelling. 



Avoiding a custody fight is one of the most important things parents can do to ensure their children’s well-being after divorce.  But even children whose parents are not fighting over custody can also be wounded by the anger being vented between both parents, and should be spared from that as much as possible.

June 18th 2008 Posted to Custody and Visitation
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The American Academy of Matrimonial Lawyers has published an excellent guide for parents going through divorce.  It is called “Stepping Back from Anger: Protecting Your Children During Divorce.”  To give it the widest possible audience it deserves, we will post it here in three parts.

Stepping Back from Anger: Protecting Your Children During Divorce: Part 1

Every year, more than 1 million American couples get divorced. For those men and women, it is often the most grueling, emotionally exhausting, and expensive experience they will ever have. 



For their children, it can be even worse. 



Imagine you are six, and suddenly the only people you have ever relied on for food, shelter, and love are at each other’s throats. In your young mind, you conclude that you are the cause of their anger, and that you might get lost in the shuffle. Before you know it, you think to yourself, there won’t be anybody left to scare off the closet monsters. 



To make matters worse, you often find yourself alone in your anguish, as the two people you usually go to for solace - your parents - are too wrapped up in their own anger and grief to be of much help. 



It is unsettling, to say the least. 



As parents, it is not enough to assume that your children will bounce back once the legal machinations of divorce are through. Though many adults find their post-divorce lives are vastly better than their pre-divorce lives, for many children, this is not the case. 



Divorce makes its mark on children both in the short-term and the long-term. Young children whose parents are divorcing often suffer from depression, sleep disorders, loss of self-esteem, poor academic performance, behavioral regression, and a host of other physical and emotional disorders. 



Long after the divorce is final, children of divorce often have trouble entering into committed relationships of their own, fearing their relationships will end as their parents’ did. 



In addition, a Princeton University study showed that children who live apart from one of their parents are more likely to drop out of school, become idle (neither be in school nor have a job), and have a child before reaching 20, than children who live with both parents. Other studies have made similar findings, concluding that the effects of divorce on children are pervasive and insidious. These sad facts make it imperative that divorcing parents put their children before their legal battles. This often means that two people who find it difficult to be in the same room without screaming at each other will have to calmly, deliberately, and most of all, lovingly, make joint decisions about their children’s well-being. 



While it may mean suppressing their anger at a cheating or neglectful spouse, the winners, in the long run, are the children. 



The stakes are obviously quite high. 

June 17th 2008 Posted to Custody and Visitation
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The major difference between divorce and mountain climbing is that divorce is much more difficult.  Just as you would not dream of attempting to scale Mount Everest without the necessary preparation, you should not contemplate divorce without taking five crucial financial steps beforehand. 

1.            Make sure you have access to liquid funds.  There are many reasons why you are going to need access to cash leading up to and during your divorce.  You will need funds to retain an attorney and pay litigation expenses.  Also, you may have to pay living expenses in the event that you and your spouse physically separate.  The more cash to which you have ready access, the better.

2.            Set up a bank account in your sole name and make sure that you have at least one separate credit card.  If an account is held solely in your name, only you will have access to the funds in that account.  However, if you fund your separate account with money from a joint account, the funds in your separate account will still be marital property subject to division.  In that case, you should keep a meticulous accounting of your expenditures.

Divorce cases can be unpredictable.  Because you could find yourself with nowhere else to turn if you need quick access to funds, a credit card in your sole name can be a useful safety net.           

3.            Evaluate joint credit cards, lines of credit, and other liabilities.  If a divorce is imminent, you do not want to be liable on any accounts on which your spouse has charging privileges.  It is not unheard of for an angry spouse, upon learning of a divorce, to go on a shopping spree.  Likewise, some lawyers may advise their clients to take out cash advances on joint cards to provide a cushion while the divorce is pending, or to charge a large amount in attorney’s fees to joint cards.

You should consider fixing or reducing the spending limits on joint credit cards.  Similarly, you should consider restricting access to a joint home equity line of credit pending the resolution of the divorce.

However, before taking any action, discuss these issues with your attorney who can give you the best advice with regard to your particular circumstances.

You should also check your credit report (You can get one free copy per year at www.annualcreditreport.com).  It is not uncommon for one spouse to take out a credit card or a loan or to incur some other debt in joint names without the other spouse’s knowledge. 

4.            Gather and organize financial records and put them in a safe place.  Make sure you know the scope of all the assets - including cash, real estate, investments, retirement, and life insurance - that you own jointly and separately, as well as of all marital debt.  You should also make an inventory of valuables, such as the content of safety deposit boxes, jewelry, artwork and antiques.

In divorce, knowledge is power.  But it has to be documented knowledge.  It is not good enough for you to simply “know it.”  You have to have the paper trail to prove it.  If possible, get copies of financial statements, tax returns, retirement plan documents, brokerage statements, and insurance policies for the last five years.  And keep these records in a safe place.

5.            Consult with a good divorce lawyer.  Do not rely on the advice of friends and family who have gone through a divorce for advice on the potential financial consequences that divorce would entail for you.  You should consult with an attorney who focuses his/her practice on matrimonial and family law and who can give you sound, tailored advice based on the unique facts and circumstances of your particular case. 

June 13th 2008 Posted to Finances
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