‘Fault’ divorce vs. ‘no-fault’ divorce

As recently as 1970, you couldn’t get divorced in the U.S. without showing that one of the spouses was “at fault” for the breakdown of the marriage. Fault was a serious thing – it generally meant that one of the spouses had committed adultery, cruelty, desertion, a felony, etc.

Starting in 1970, the states began changing their laws to allow “no-fault” divorce, which means that a couple can get divorced simply because they can’t get along. Today, almost every state allows no-fault divorce…although many require couples who want a no-fault divorce to live apart for a certain amount of time before the divorce can be granted.

Despite the fact that no-fault divorce is common, some people still want to claim that their spouse is at fault. There are several reasons for this:

• In some states, proving that the other spouse was at fault means that you’re entitled to a greater share of the property.

• A “fault” divorce can avoid the waiting period necessary before a no-fault divorce becomes final.

• Some people simply feel wronged and want this fact acknowledged in court.

However, proving that the other spouse is at fault is not always easy. Two recent cases demonstrate this.

In New Hampshire, a fault divorce can be granted if one spouse endangered the other’s “health or reason.”

After almost 20 years of marriage, a wife filed for divorce. She presented e-mails between her husband and other women, including a former girlfriend, in which they professed their love for each other. Other messages were sexually suggestive. She testified that she was “angry, upset and distraught” when she

discovered the e-mails.

But the court said that simply being upset and angry wasn’t enough, and didn’t amount to a serious injury to the wife’s health or reason.

In another case, a New York man claimed that his wife was at fault for the divorce because she had lied to him when she said he was the biological father of one of their children. He demanded a greater share of the couple’s property as a result.

According to the man, after several years of marriage and two children, the wife engaged in an extramarital affair and became pregnant. She didn’t tell her husband that the child might not be his. The husband later became suspicious and arranged for a DNA test that established he was not the father.

He argued that the wife’s behavior was cruel and inhumane and amounted to “egregious fault.”

But the court said that while it didn’t condone the wife’s alleged misconduct, the wife never endangered the lives or the physical well-being of any of the family members. Also, she never deliberately tried to inflict emotional or physical abuse on them.

Therefore, the husband wasn’t entitled to an extra share of the property.

Husband can’t share in wife’s disability insurance

The disability insurance benefits paid to a wife during her marriage are her separate property and she doesn’t have to share them with her husband at divorce, according to an appeals court in California.

Before her marriage, the wife had purchased the disability policy, paid all the premiums, and started collecting benefits.

When she got divorced, her husband argued that the benefits were property

that was acquired during the marriage, and therefore he was entitled to a share of them.

But the court disagreed. It said the wife had purchased the policy before she got married, with her own separate funds. Therefore, the stream of income she received as disability benefits accrued to her prior to the marriage, and it was her separate property, even though many of the benefits were received during the marriage.

Dead man’s family could have his sperm preserved

Losing a child or a spouse is extremely difficult. Recently, with the advances of modern science, some people have decided to try to keep a man’s memory alive by having his sperm preserved after his death in order to use it to father a child.

In Texas, after a 21-year-old man died, his mother requested an emergency hearing and asked a judge to order the county coroner’s office to maintain the man’s body so his sperm could be collected.

The mother told the judge that the man had wanted to have three sons and had even chosen their names – Hunter, Tod and Van.

The court ruled in favor of the mother.

In another case in New York, a man died of a heart attack and a court allowed his fiancée to have his body preserved so she could harvest his sperm.

The woman told the court that the

couple already had a two-year-old son and had intended to have a second child.

However, another New York court ruled that a man’s parents weren’t entitled to the sperm samples that he had deposited in a sperm bank prior to his death.

Six months before he died, the man made several deposits at the sperm bank. At the time he filled out and signed a form in which he stated that if he died, the lab should destroy all semen vials in its possession. The lab refused to turn over the vials to his parents.

The parents wanted the specimens in order to try to produce a grandchild. They argued that, as the representatives of his estate, they had a legal right to them.

But the court sided with the lab, saying the son had signed a valid agreement and had clearly expressed his intent not to have the samples preserved.

Man could be sued for paternity in another state

A man who had sex with a woman in New Jersey can be sued for paternity in New Jersey, even though he never lived there, says a New Jersey appeals court.

The couple in this case were engaged in the mid-1980s. The woman, who lived in New Jersey, became pregnant. The man asked her to have an abortion and ended the engagement when she refused.

She gave birth to a daughter who suffered from cerebral palsy. In 2005, she sought a declaration of the man’s paternity and child support.

The man argued that he couldn’t be sued in New Jersey because he had never lived there.

But the court said the suit was okay

because the man had spent a “substantial amount of time” in New Jersey, and his sexual relationship there was what gave rise to the paternity claim.