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