Westchester Divorce Blog

A recent story in the International Herald Tribune  described how an ex-wife of health company mogul, Mark Hughes, testified that she hired Anthony Pellicano, a private investigator, during the couple’s divorce case, but did not authorize him to use a wiretap on the Herbalife co-founder.

Suzan Hughes said that she was played a tape of a phone call Pellicano illegally intercepted between Hughes and Bill Gillespie, the husband of her sister.  After hearing the tape, was convinced Gillespie was not on her side in the divorce battle.

Pellicano, 64, has been accused of running a criminal enterprise, which has taken actions such as tapping phones and bribing police to gather dirt on celebrities such as Sylvester Stallone and Gary Shandling in order to aid his clients in gaining an advantage in legal and other disputes.
Pellicano and four co-defendants pled not guilty to various charges.

According to the prosecution, between September 1997 and March 1998, Pellicano listened to the telephone calls of Hughes.

During her testimony Suzan Hughes also said that during her divorce proceedings in the late 1990s, she had hired Pellicano to investigate Hughes and Darcy LaPier, his mistress at the time.  LaPier, ex-wife of actor Jean-Claude Van Damme, later married Hughes.

In May of 2000, Hughes passed away due to an overdose of alcohol and anti-depressant medication.  Last year, his estate filed a civil suit against Suzan Hughes, Pellicano, and others in connection with the wiretapping. That case is still pending.

Actor Keith Carradine also testified.  Sandra Will Carradine, his former wife, hired Pellicano in order to investigate him during a bitter court proceeding.  She pled guilty to two perjury counts and is expected to be called as a witness for the prosecution next week.

There is a lesson here for everyone going through a divorce in New York:  It is illegal (read: criminal) to record phone calls between your spouse and another party.  It is generally permissible to record telephone conversations to which you are a party.  However, please talk to your divorce lawyer about when it is and is not legally permissible to record phone calls before you do.

July 06th 2008 Posted to General
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Question:  In 2003, I established a revocable living trust.  Since that time, my son has divorced.  If my wife, son, and I are deceased, will his children automatically receive his share?

Answer:

The Rules: You or an agent authorized by you under a comprehensive power of attorney can change a revocable living trust at any time.  The assets will automatically pass to your son’s children if the trust leaves your assets to him “per stirpes.”

How It Works: You should periodically review your trust with an experienced attorney who will look at whether and to what extend the trust is funded, i.e. what assets are held inside and outside the trust. Only the assets actually titled in the trust and assets naming the trust as beneficiary (retirement benefits, for example) are affected by the trust.  Any assets not titled in the trust should be included in a valid will in order to provide for their distribution.

The Strategy: Your son should execute a will creating a trust for his children.  Someone other than his ex-wife should be the trustee, especially if he has any concerns that she may use his assets to provide for the children while exhausting their inheritance.  You may wish to amend your trust to provide for spendthrift protection against his creditors and possibly his ex-wife.

July 03rd 2008 Posted to Finances
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Prospective divorce clients frequently ask us if we will be aggressive . . . or a pit bull . . . or a shark.  They phrase it differently.  But, many people facing divorce believe they need is the most aggressive divorce lawyer in New York.

In our years of divorce practice we have seen lots of lawyers handle divorce cases.  There are as many different styles as there are different lawyers.  But, we have also noticed three recurring styles of lawyer in particular.  Our friend, Michael Sherman, of the Alabama Family Law Blog, calls them the lamb, the pit bull and the fox.

“The lamb” is the lawyer that just goes with the flow.  They are reactive, not proactive.  They want to avoid confrontation at all costs and that means they also want to avoid going to court at all costs, even if it means convincing their clients to settle for significantly worse terms than they should.  The lamb may even be afraid to try the divorce case.  He will rarely, if ever, tell his client that he should not accept a settlement offer that is being extended from the other side even if that offer is clearly inequitable.  Thankfully, there are not a lot of lambs that last very long as divorce lawyers.

Much more prevalent is the “pit bull,” who is exactly the opposite.  They hate to settle cases.  In fact, some of them will not do anything proactive to try to settle their divorce cases.  It is almost as if they take some type of perverse joy in seeing the “blood running in the streets.”  When a spouse is angry and in the emotional stage of wanting to exact revenge, the pit bull wants to be the name on everyone’s lips when that aggrieved spouse asks their neighbor who is the meanest SOB in town.  So, they work hard to maintain that reputation because it makes them a lot of money.  

The sad part is that acting like a pit bull is rarely, if ever, in their own clients’ best interests.   Of course, the pit bull’s main concern is not their client.  If you know anything about pit bulls, you will know that they are very aggressive and vicious.  But, they are not thinking animals.  They act only on instinct.   When they fight, they not only destroy the dog they are fighting, but by their own actions they hurt themselves and anything else around them (which often includes their own client and their client’s children).

The pit bull is aggressive for the sake of being aggressive, not for any long-term benefit it may bring their client.  Often, people going through divorce will think they need an aggressive lawyer to represent them in their divorce.  They are wrong.  What they need is a lawyer who is assertive.  There is a difference.  It is the difference between the “pit bull” and the “fox.”

The fox is wise and cunning.  He sees the big picture.  The fox is assertive when he needs to be, compromising when it benefits his clients’ long-term best interests, and always aware of the many different consequences his actions have on his clients.  He stands on principle. Yet, he is a strong advocate for his client when it promotes his client’s long-term best interests.  He recognizes that reaching a fair settlement is always preferable to trying the case and leaving it up to the judge.  Yet, he also knows that if a fair settlement is not forthcoming, then he must be willing and able to prepare to effectively litigate the case in court.

When choosing a divorce lawyer, you should avoid the” lamb” and the “pit bull” at all costs.  Instead, find yourself a “fox.”

July 02nd 2008 Posted to You and Your Lawyer
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A man from Australia is attempting to auction off his life on eBay, saying that he just wants to “move on” after his eight-year marriage ended in divorce.

According to British newspaper, The Guardian, 44-year-old Ian Usher from Perth, Australia, decided that he would auction off everything in his life, including his car, home, jet ski, and friends, after the collapse of his marriage.

Usher said that the process was going much better than he’d expected. He said, “My life’s on a much more even keel now. I’m ready to move on.”

According to the newspaper, after the auction began on June 22, offers reached at least $1.7 million.

Usher quipped that even if the auction is unsuccessful, he will always be known as “the man who couldn’t sell his life on eBay.”

July 01st 2008 Posted to Miscellaneous
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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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