Marital Torts

A recent article in the February 11, 2009 New York Times by Joshua Robinson and Jack Curry entitled "Legal Dispute Hinges on Whether Alomar Has H.I.V." reminded me that we often include in our divorce agreements language stating whether the couple waives a post judgement claim for a marital tort. You can read the article at http://www.nytimes.com/2009/02/12/sports/baseball/12alomar.html. I use marital tort as a euphemism for "did one of them give the other AIDS or a STD." It is not a type of dessert. It is an important issue but an awkward issue to bring up. It raises an issue of infidelity that might not have otherwise come up. I started raising the issue after I heard of a case in which a party discovered that their former spouse gave them AIDS. In that case a party made a claim against the former spouse for giving the party AIDS. The former spouse successfully raised the defense that the party who got AIDS had released the claim in the general release paragraph of the divorce agreement. Divorced spouses also bring tort claims against each other for misconduct that occurred during the marriage As always, you can post any comment about this blog, Divorce Mediation, or Tucson Arizona by following the directions at the right in the green column or at the bottom of this website. Learn more about mediation at http://www.center-divorce-mediation.com/ WM 2/27/09

Valentine's Day 2009

The logo for my Divorce TV show is the above broken heart. Since the shows originates from Tucson, Arizona, I always thought it would be appropriate to have a cactus shaped heart. I pondered how I could get one and even thought of cutting up a cactus. I was pleasantly surprised to find the following heart shaped cactus in the Arizona Star on Valentines Day.

It then occurred to me that I should have used Google Images to find a heart shaped cactus. When I googled it I found lots of them. See them at http://images.google.com/images?hl=en&q=heart+cactus&btnG=Search+Images&gbv=2
I am now planning to use the heart shaped cactus as part of the introduction to the show.
As always, you can post any comment about this blog, Divorce Mediation, or Tucson Arizona by following the directions at the right in the green column or at the bottom of this website. Learn more about mediation at http://www.center-divorce-mediation.com/ WM 2/22/09

Divorce, Pensions, Beneficiary, and the United States Supreme Court

Divorce related cases don’t often make it to the United States Supreme Court but Kennedy vs. Plan Administrator for Dupont Saving and Investment Plan did! It is a important reminder to follow up the actions taken in a divorce.
The Supreme Court stated in its syllabus that "The decedent, William Kennedy, participated in his employer’s savings and investment plan (SIP), with power both to designate a beneficiary to receive the funds upon his death and to replace or revoke that designation as prescribed by the plan administrator. Under the terms of the plan, if there is no surviving spouse or designated beneficiary at the time of death, distribution is made as directed by the estate’s executor or administrator. Upon their marriage, William designated Liv Kennedy his SIP beneficiary and named no contingent beneficiary. Their subsequent divorce decree divested Liv of her interest in the SIP benefits, but William did not execute a document removing Liv as the SIP beneficiary. On William’s death, petitioner Kari Kennedy, his daughter and the executrix of his Estate, asked for the SIP funds to be distributed to the Estate, but the plan administrator relied on William’s designation form and paid them to Liv. The Estate filed suit, alleging that Liv had waived her SIP benefits in the divorce and thus respondents, the employer and the SIP plan administrator (together, DuPont), had violated ERISA by paying her. As relevant here, the District Court entered summary judgment for the Estate, ordering DuPont to pay the benefits to the Estate. The Fifth Circuit reversed, holding that
Liv’s waiver was an assignment or alienation of her interest to the Estate barred by §1056(d)(1)
Held:
Because Liv did not attempt to direct her interest in the SIPbenefits to the Estate or any other potential beneficiary, her waiver did not constitute an assignment or alienation rendered void under §1056(d)(1)."
You can read the entire opinion at
http://www.supremecourtus.gov/opinions/08pdf/07-636.pdf
If you don’t want these results make sure you follow up what you agreed to in your divorce.
As always, you can post any comment about this blog, Divorce Mediation, or Tucson Arizona by following the directions at the right in the green column or at the bottom of this website. You can get more information at our web site at http://www.center-divorce-mediation.com/ WM 2/15/09

Elder Mediation

The Center for Divorce Mediation & Alternative Dispute Resolution, Inc. also specializes in Elder Mediation. Elder Mediation is a new approach to helping seniors and their adult children resolve life-cycle issues. We encourage families having trouble with elder issues to use mediation to reach a binding agreement resolving those issues, thereby strengthening the family. The family jointly hires a member of the Center to act not as a lawyer or counselor for either, but as a mediator. During a series of meetings the family works with the mediator to identify their issues and work out a mutually satisfactory plan to address them, including exchange of information and whatever sharing of responsibility they consider best for them. Each family member is free to consult with a lawyer or other advisor at any time, but the family members are encouraged to consult with a neutral financial planner or other expert, rather than hiring dueling experts. The process is designed to help the family, with the assistance of the mediator, approach their dispute as a problem to be solved through brainstorming by all participants.
Typical issues addressed are: the selection of care giver for the elderly parent; inheritance or estate planning issues; financial decisions such as who will manage the finances for the elderly parent; the wish for an elderly parent to continue driving despite multiple auto accidents; residence issues, medical treatment decisions, and guardianship/conservator issues.
Once an agreement is reached, the Center will write a draft of a Mediation Agreement for each member of the family to review with his or her legal advisor before signing the Agreement.
Elder Mediation works only if the family is willing to make a good faith effort to reach agreement. There is no legal obligation to agree. Any commitment to mediation and to make the resulting agreement work comes voluntarily from the family.
The process of negotiating and writing a legal agreement can strengthen a family. A stressful, destructive pattern of unresolved conflict can be transformed into supportive, creative problem solving of difficult life-cycle issues through mediation.

Read further about Elder Mediation in an article in Lawyer’s USA at
http://www.lawyersweeklyusa.com/index.cfm/archive/view/id/430813#

As always, you can post any comment about this blog, Divorce Mediation, or Tucson Arizona by following the directions at the right in the green column or at the bottom of this website. You can get more information at our web site at http://www.center-divorce-mediation.com/ WM 2/8/09

Tips for Getting a Divorce in a Bad Economy Part 1

As the economy worsens couples contemplating divorce face even more problems than normal. We estimate it costs 30% more to live separately than together. Many couples cannot afford to get divorced. I have compiled the following "tips" to help them. Please send me your suggestions.
1. Try Harder: See if you can save your marriage. Try marital mediation or marital counseling. It may be covered by your health insurance. If not, your religious affiliation or local non profit organizations may have free counseling. We offer marital mediation. See more at our web site at http://www.center-divorce-mediation.com./
2. Use Mediation: It will not only cost you less to get the divorce but will probably save you money in the long run. You can get more information at our web site at http://www.center-divorce-mediation.com/
3. Represent Yourself: Most courts allow you to represent yourself in a divorce. It is called either pro per or pro se. The courts either have kits you can use or can refer you to the place you can get them. They are online in Arizona at http://www.sc.pima.gov/?tabid=119 . The court web site also has a Family Law quick guide at http://www.sc.pima.gov/?tabid=113. There are also many books available which will walk you thru the process.
4. Consider Bankruptcy: Consult with a bankruptcy attorney to see if bankruptcy is best for you. It is probably better if both husband and wife file. If you don’t want to file for bankruptcy, try negotiating with your creditors.
5. Use One Attorney to Prepare Documents and Another Attorney to Review Them: One attorney cannot represent both of you but if you both agree on all the issues, one attorney can represent one of you and prepare all the documents. I suggest the person not represented by that attorney get his or her own attorney to review the documents. It should not cost much to do this.
6. Consider Creative Housing Solutions: Even before the recent economic problems couples did this. If your house allows it live in separate areas of the house and work out a schedule when you do not have to be in the house at the same time. You should consider what impact this has on your children. Move in with a parent or friend or house sit. I have not heard of anyone doing this but it might work. Consider a Kate and Allie living arrangement. This is named after the 1984 television show in which Allie Lowell divorces her husband and gets custody of their two children, and moves in with her best friend, Kate McArdle, also divorced and raising a daughter. They form a unique kind of family unit. The show starred Susan St. James and Jane Curtin. In the ultimate version of this show the husbands could live together and the wives could live together!
7. Short Sales: Negotiate a short sales, in which the bank agrees to cut the loan amount to the sale price.
8. Disaster Scenarios: Have your divorce agreement include "disaster scenarios", automatic adjustments to support payment schedules a party loses their jobs. Job loss adjustments should be temporary and might include a postponement rather than an elimination of support.

As always, you can post any comment about this blog, Divorce Mediation, or Tucson Arizona by following the directions at the right in the green column or at the bottom of this website. If you have any suggestions on how to divorce in bad economic times, please comment. You can get more information at our web site at http://www.center-divorce-mediation.com/ WM 2/1/09