Give Me Back My Kidney: A Strange Divorce Case in New York

 

In 2001, Long Island surgeon, Dr. Richard Batista, donated his kidney to his wife, Dawnell, in order to save her life.  Although the surgery was a success, the same cannot be said for the marriage which ended when Dawnell filed for divorce in 2005 after 15 years. Batista claims that his wife began cheating on him eighteen to twenty-four months after she received the transplant.

Instead of fighting over the million-dollar home they shared, Batista is asking that either his kidney be returned or that he be compensated for it. He is seeking $1.5 million in damages. Batista claims that his demand stems from frustration regarding the ongoing negotiation process with his soon to be ex-wife. He decided to go public with the details of his divorce as a last resort after being prevented from seeing his three children for months at a time.

Matrimonial attorneys were quick to voice legal opinions that Batista’s claim for damages would fail. In the Huffington Post article “Divorcing Man Wants Kidney Back After Wife Cheats,” a Manhattan attorney, Susan Moss, argues that no judge will entertain this demand because judges are unwilling to place a value on such assets.  She cites a similar case in which a husband wanted to be repaid for the cost of breast implants but was denied compensation.

Moss’s prediction was correct. In February, a Long Island Judge rejected Batista’s request on the grounds that it would violate public policy. The Judge’s Referee, Jeffrey Grob, wrote, in a ten page ruling, that entertaining Batista’s claim would make the statement that human organs are commodities.… <Read More>


Hiding Assets? Not So Fast….

Somebody going through a contentious divorce can be very unpredictable. A person with a combative and calculating personality can make a divorce proceeding extremely unpleasant and difficult for all involved, including the courts. It is not uncommon for somebody like this to file orders of protection without merit, relocate children without consent, hide assets and underreport income. Liquid assets are often placed in foreign bank accounts, put into questionable investments or squandered. Once these funds are gone, they are unavailable for consideration during equitable distribution.

Hidden assets and income affect the victim spouse when a court is deciding an appropriate property division, maintenance and child support.  If a spouse hides or wastes income and assets, the victim spouse will not have the entire marital pot available for division by the court.  Instead, the victim spouse can only receive an equitable share of the diminished pot.  When this occurs, how can a court provide a remedy to a victim spouse?

In equitable distribution, the court maintains discretion over the degree and nature of the penalty imposed for failure to comply with disclosure orders. In some cases, after it has been determined that income and assets were hidden or wasted in contemplation of divorce, the court can decide that unequal distribution of marital assets is warranted by the egregious economic misconduct. Although this method provides the victim spouse with some redress, the victim spouse is never truly whole, since the award is being apportioned from a distorted marital pot.

Moreover, it has to be established that assets and income have been secreted and concealed for a court to order unequal distribution.  … <Read More>


Getting a Divorce? What You Post on Facebook Can Come Back to Haunt You

 

The American Association of Matrimonial Lawyers (AAML) recently conducted a survey of divorce attorney which revealed a growing trend involving evidence found on social media outlets such as Facebook, Twitter and Match.com. According to the survey, 66 percent of attorneys use Facebook to find incriminating photos or statements while 15percent use MySpace and only 5 percent use Twitter.

People do not realize that what you post on sits such as Facebook are permanent, even if you close your page or later delete comments.  Racy pictures and derogatory comments are discoverable because there is no right of privacy in social media forums. This information can be used as evidence of ” accurate depictions of what someone did, said (or intended to say) at the time. MSNBC.com recently highlighted some examples of such posts:

-In court, a mother denied that she smokes marijuana but posted photos of herself partying and smoking pot on Facebook.

-A husband went on Match.com and declared he was single and had no children while he was seeking primary custody of his actual children.

– A husband denied that he had anger management issues but under the “write something about yourself” section on Facebook: “If you have the balls to get in my face, I’ll kick your ass into submission”.

Because postings such as these can hurt a client’s case, more attorneys are advising their clients to shut down Facebook pages and Twitter accounts when in the admist of a divorce.

For more information, see “Facebook Can Haunt You in Your Divorce” (Razai & Nefulda, businessreviewusa.com)… <Read More>


Long Delays for Divorces

Massive budget cuts and layoffs in the NYC court system are causing long delays in granting of uncontested divorces. Divorce cases are taking longer to resolve in most counties, with Richmond County and Kings County judges taking up to 10 months to sign uncontested divorce judgments.


William J. Leininger, a veteran matrimonial attorney, said “the wait to obtain a signed judgment finalizing a divorce is now nine months or more after both sides agree to terms. The finalization process used to take three or four months.” And that, he says, is “on top of the time typically required —  from a few months to two years — to reach the divorce settlement.”

These delays are hindrance to remarriage by the parties and, far more importantly, to payment of needed alimony and child support, because settlements incorporating them are unenforceable without the signed judgment. This can place some parties in financial hardship as they wait around for the final judgment, without which they cannot collect the promised sums they need to continue to support their families. Under New York’s no-fault amendments, parties may seek pendente lite support, but that, too, takes time and burdens the system, and meanwhile they are without needed support. Pendente lite support is often used to provide support to the lower income spouse while the divorce process is pending.

According to the New York City Bar Association, the state judiciary, in 2010, was subjected to a $170 million budget cut. About 8 percent of its workforce, or 1,300 employees, left the courts due to early retirements and layoffs.… <Read More>


When Does a Man Become a Dad? When the State Says So

Over the years, American culture and its view on what “family” means has changed drastically.  Same sex marriage (while not allowed everywhere) is not as shocking as it once was.  Single motherhood has become acceptable and many couples feel that marriage is becoming obsolete.  Despite these radically shifting social views, the laws in the U.S. governing what makes up a “family” are slow to keep up.  And the people impacted the most by these legal doctrines are sometimes the least aware of them.

Take Chukwudera Okoli, who married his wife, Blessing, in 1991.  Despite years of trying to conceive, the couple remained childless through the years – including when they separated in 2001.  However, in 2003, Blessing became pregnant with twins through the use of in vitro fertilization, using donor sperm and a donor egg. On March 6 2012, the Appeals Court of Massachusetts affirmed a decision by a judge from Probate and Family Court  requiring Okoli to pay child support to the twins.

Usually, there would be nothing unusual about a married parent being required to pay child support.  Massachusetts, like New York, has a legal presumption that a man is the legal father of any child to whom his wife gives birth to, in addition to a law aimed specifically at artificial insemination, which recognizes the husband as the legal father of children his wife has conceived through artificial insemination.  Though Okoli and his wife were separated, they were not divorced (i.e. they were still married) at the time of the birth of the twins and neither of the parents is genetically related to the children. … <Read More>