Divorce Lawyers' Guide to Staying Married

You Have the Right to a (Divorce) Attorney

by Ashley

One Washington state woman believes that everyone should have the right to a divorce attorney.  The woman contends that she was in court, trying to get custody of her children, without any idea what she could say or do.  As a high school drop out with a GED and no legal training, she hadn't subpoenaed witnesses, did not know when to object, and had to cross examine her ex-husband and his new girlfriend.  The Seattle Post-Intelligencer reports that she told the judge: "I'm a good mother but a lousy lawyer."

The Washington State Supreme Court will hear arguments about whether people involved in custody disputes should be provided free legal consul.  The case has drawn the attention of the state's bar association and other groups.  Those who oppose the bill say that the state should not have to foot the bill for private court cases.  They further argue that this is not a constitutional question and therefore not the court's decision.  It should be decided by the legislature.  The plaintiffs lawyer responded by telling the Post-Intelligencer:

If the state's only interest is money, that's not necessarily going to outweigh the fundamental rights that a parent has in a very complicated proceeding.

Washington state law does allow for state funded attorney in some civil matters, but no state has a guarantee to representation in a divorce case.   The Northwest Women's Law Center and National Coalition for a Civil Right to Counsel support the right of parents to consul.  One member of the state bar association wrote:

Emotionally distraught parents are particularly ill-equipped to navigate the civil justice system against their former spouses, who may enjoy a substantial imbalance of power.

Embryos Raise New Legal Questions in Divorce Disputes

by Ashley

Infertility treatments are not easy.  They can take years, require daily hormone injections, and can become extremely costly.  For one Texas couple, their quest to have children eventually highlighted the trouble in their marriage.  After their fertility doctor called to announce the successful creation of embryos, Randy Roman decided that he could not go through with the procedure.  While he and his wife Augusta worked out their problems, they agreed to freeze the embryos.

Although the couple went to marriage counseling, it didn't work.  In 2003 they filed for divorce, 16 months after the embryos had been created.  They divided up property like any other couple-- she got the house, he got the big screen TV.  The one thing the couple could not agree on was the fate of the frozen embryos. 

The couple signed a form when they froze the embryos that gave the clinic permission to destroy the embryos if/when the couple divorced.  Augusta, however, wanted to take custody of the embryos and have them implanted while releasing her ex-husband of all parental (and financial) responsibilities.  Randy, however, said that he could not disavow his genetic off-spring, not matter what his relationship is with their mother.  The Los Angeles Times explains that most states consider embryos to be property with the potential for human life, not a human life which needs to be placed in one parents custody.

Many couples split up without any clear agreement about the fate of their un-implanted embryos.  Further complicating the situation is that there is, as yet, no federal precedent for settling such disputes.  The Los Angeles Times says:

To date, the top courts of six states have ruled in such cases. While the case particulars have varied, a trend has emerged. In general, the courts have held that the right of one ex-spouse to not procreate trumps that of the other to procreate.

As these kinds of court disputes become more and more common, there is a good chance that one will eventually come before the Supreme Court.  In the controversial Roe v. Wade decision the Justices avoided deciding when life began.  Augusta claims that she feels that she was already pregnant and that the embryos are her only chance for children.  Her ex-husband's lawyer says that defaulting embryo custody to the mother reduces men to the role of sperm donors in in-vitro fertilization and if his wife is allowed to have his children, he would not want to be forced out of their life.

Both Randy and Augusta have filed briefs with the Texas Supreme Court.

Most Costly Celebrity Divorces

by Ashley

"Falling in love is free, but falling out of love can cost you" quips Forbes'.  Celebrity divorce is big business, not only for lawyers, but for tabloids, TV stations, and business managers.  Since many Hollywood marriages last less than a year (Drew Barrymore and Tom Green, Pam Anderson and Kid Rock, etc) who did what to whom is often less interesting (and important) than who gives what to whom.

Forbes' magazine catalogs the ten most expensive celebrity divorces, a list dominated by men paying to women.  The magazine speculates that this reflects the traditional economic dominance men have had in their partnerships, though that is changing, with stars like Brittney Spears and Janet Jackson forking over huge payouts.  Neil Diamond and Michael Jordan top the list, while the much publicized Mills-McCartney split only comes in at number 5.

Part of the reason the Jordan split, for example, is so costly is that the pair did not have a short marriage.  Jordan made most of his fortune during the 18 years the couple was together.  Unless there is a pre-nup, length of marriage usually affects the kind of settlement a wife gets.

Huge payouts to former spouses have not soured the rich and famous to marriage-- several members of the list (including Kevin Costner) have remarried.

It is Over When the Bald Lady Sings

by Ashley

Britney Spears reportedly told her now-ex, Kevin Federline, that he "was the worst mistake" she'd ever made.  However, the on-line tabloid "PostChronicle.com" reports that last month she asked if he really wanted to get a divorce.  Apparently Federline lead Spears to believe that they might try to work it out when she finished rehab, though there is some speculation that was a ploy to keep her in the Promises program.

Unconfirmed reports suggest that Federline will get $13 million dollars once his divorce from Spears is finalized.  The terms of the couple's pre-nup guaranteed him $250,000 for each year they were married, but  Britney increased the amount to $500,000 a year to speed up negotiations.  Federline will also get half of the sale price of the couple's Malibu home.  Given Spears' recent behavior, it is perhaps unsurprising that Federline will have custody of the couple's two children four days a week.  She has also promised $25,000 a month in child support until the children turn 18.

Despite rumors about wanting to work it out with Federline, Spears is now dating musician Howie Day and is apparently smitten.

Rumor Has It, K-Fed and Spears Settle

by Ashley

People Magazine reports that Brittney Spears and Kevin Federline have reached a settlement.  Terms of the agreement have not been disclosed, but it does reportedly cover all aspects of their relationship-- including, custody of their two children.  Apparently, the deal was worked out in a five-hour meeting at the offices of Spears' attorney.  During a 15-minute smoke break, Spears and Federline did speak, but it is not known what they talked about.

The couple married in 2004, and by September 2006 had two children.  Trouble began in their marriage shortly after the birth of their second child, and Spears filed for divorce November 2006.  Just after filing, Spears began a stint of heavy partying that was widely reported in the media.  Her rep at first said it was a long overdue relaxation period, but later admitted Spears was going through a difficult time.  Spears entered rehab in February 2007, fueling rumors that Federline may file for custody of the couple's children.  Spears left rehab ten days ago.

Alimony and Sex Change

By Wendy Jaffe

Law professors love to come up with crazy hypotheticals for their students--the wackier, the better. So I'm sure every family law professor in the country was excited to present the following real life "hypothetical" to their students.

Assume a man, who we will call Mr. Roach, agrees to pay spousal support to his former wife to terminate in the event of "death or re-marriage." Then assume that the former Mrs. Roach decides to have a sex change operation. Is Mr. Roach still obligated to pay support to his former wife?

One student raises are hand and argues that the only published case (from another state) on the topic held that the sex change does not relieve him of his obligation to pay support. Plus, she argues, their agreement is silent as to sex changes and clearly says that support will terminate on death or re-marriage.

Another student raises his hand and argues that he is not obligated to continue to pay support because the state of Florida does not provide for gay marriage or support between men who who previously had a relationship.

This is no hypothetical. It is a case that is currently before the courts in Florida.An AOL on-line poll of lay people so far says that 63% of people think that the sex change operation does change the support obligation.

I was in the minority on this one. At the time the couple was married, it was a legal marriage between a man and a woman. The fact that someone makes a major life change after marriage (e.g. becomes a monk, a drug addict, shaves her head, changes religions) should have no bearing on whether support should continue. Support is an obligation based on the couple's marriage; not on their divorce. (Of course, this begs the question about marriage to another terminating support, but that is an intellectual question for another day!)

Am I wrong?

Alimony-Wives Paying Husbands in Increasing Numbers

By Wendy

A friend of mine once joked that she thought of her husband's income as "ours", and her income from her job as "hers." But that is not how judges look at it. For the most part, the laws that govern family law are gender neutral. As glass ceilings shatter everywhere allowing women to finally make the big bucks, women are increasingly having to pay out to their less financially successful husbands when their marriages are shattered. Forbes magazine did a story this month on the ramifications of women paying spousal support, often times in significant amounts, to their former spouses.

In the Forbes story, a distressed Kim Shamsky, who started a very successful business before she married a former major league baseball player, was ordered to pay "thousands a month" to her retired husband. She swears she will never marry again, and has considered wearing a t-shirt each day with the work "pre-nup" emblazoned on the front.

And according to a survey conducted by the American Academy of Matrimonial Lawyers, there is an increase in women asking husbands to sign prenuptial agreements to protect their income in the event of a divorce.

For years women have demanded equality. It seems now they've got it.

Paul and Heather: Last Dance?

by Wendy

When Paul McCartney and Heather Mills first split, prognosticators speculated that Heather would get a healthy chunk of Paul's billion dollar plus fortune. With no pre-nuptial agreement in place prior to the couple's 2002 marriage, there was no clear measure of what portion of Paul's fortune Heather might be legally entitled to. Now unconfirmed reports suggest that the couple have settled their case. If these reports are accurate, Heather will receive a total of cash and property worth $56 million, and the couple (or former couple) would share custody of their 3-year-old daughter Beatrice.

Now that this is settled, Heather can concentrate on her new dancing career.

When the "Little Lady of the House" Has a Big Paycheck

When I was doing research for my book, several divorce attorneys mentioned that the newest "trend" in divorce was women seeking divorces from men who they had surpassed career wise. These women conclude that if they don't need their husband financially, they don't need them at all. That is the women's perspective. But what is going on in a man's head when their wife surpasses them financially?

In a recent article, writer Dan Kadlec explains that although it is great having the financial freedom that his wife's larger income affords, it does come with a lot of emotional baggage. He explains, "Money is a cold arbiter of power, and when a wife starts making more, both spouses may feel as if the husband has been demoted."

He gives a lot of great tips to both husbands and wives on how to handle the changes that the financial disparity brings. Check it out.

Sara Evans' Latest Song and Dance

By Wendy

Sara Evans, the popular country singer who quit Dancing With The Stars when her marriage from Craig Schelske fell apart at the end of last year, is wrapping up the custody portion of her divorce case. The divorce made headlines after Evans accused Schelske of all sorts of things including pornography addiction. Schelske, not above the mud slinging, publicly accused Evans of having an affair.

The judge who was left with the unfortuanate job of deciding how custody of their three young children should be handled warned the couple to stop the negative rhetoric. "The Mother and Father will behave with each other and each child so as to provide a loving, sable, consistent, and nurturing relationship with the child even though they are divorced. They will not speak badly of each other or the members of the family of the other parent. They will encourage each child to continue to love  other parent and be comfortable in both families."

Now, if they will only listen....