“Medical divorce” is a term coined some years ago to describe a divorce obtained for medical reasons. More specifically, according to a recent article by George Diepenbrock, researchers defined “medical divorce” as

an instance where one partner becomes diagnosed with a degenerative disease, such as early onset dementia. The couple could drain its assets, including retirement savings, to pay for treatment. However, some couples instead choose to divorce to shield one person’s assets. The sick partner would eventually qualify for Medicaid.

A study by two University of Kansas economists suggests there may be a link between the expansion of Medicaid under the Affordable Care Act (“ACA”) and a reduction in the number of medical divorces. The expansion under the ACA increased Medicaid coverage to include adults younger than 65 with incomes of up to 138 percent of the poverty guideline without consideration of their assets.  Donna Ginther, professor of economics, and David Slusky, assistant professor of economics, compared divorce rates prior to and after the expansion. They found that states that expanded Medicaid under the ACA experienced a “5.6 percent decrease in the prevalence of divorce among people ages 50-64, compared with those states that did not expand.” Given the policy change affecting the states that expanded Medicaid, the professors determined it is reasonable to assume that a reduction in medical divorces accounted for the decrease.

This reduction, however, may be short lived depending on any legislative changes enacted by Congress. The article notes that Professors Ginther and Slusky believe “that research on how certain policy changes – including potential reintroduction of asset tests for eligibility – have influenced individuals’ lives can be valuable as Congress considers how to move forward with the nation’s health care system.”

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leslie_SpoltoreLeslie Spoltore is a Partner with the law firm Fox Rothschild LLP.  Leslie practices in Fox Rothschild’s Wilmington, Delaware office.  You can reach Leslie at (302) 622-4203, or lspoltore@foxrothschild.com.

 

 

Syd with tennis ballAlaska recently enacted legislation authorizing judges to consider the well-being of animals and to allow judges to assign joint custody of pets. The Providence Journal has reported that Rhode Island is now considering similar legislation. Representative Charlene Lima recently introduced a bill that would require judges to consider the best interests of pets when deciding who gets custody of them in a divorce.

The First State is generally pet friendly. In fact, the Animal League Defense Fund ranked Delaware 15th in the nation for animal protection in 2016. However, as noted in my prior post, pets are considered to be personal property in a divorce here. We will have to wait to see if Delaware will follow the lead of Alaska and Rhode Island to change the status of our pets.  Stay tuned!

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Leslie Spoltore is a Partner with the law firm Fox Rothschild LLP.  Leslie practices in Fox Rothschild’s Wilmington, Delaware office.  You can reach Leslie at (302) 622-4203, or lspoltore@foxrothschild.com.

30807004-alimony-word-in-white-3d-letters-on-a-ball-or-sphere-of-money-to-illustrate-financial-spousal-suppor[1]The recent decision in the case captioned R.S. v. W.E., Del Fam. Ct., No. CN10-05981, Kerr, J. (Jan. 4, 2017), warns Family Court litigants that failure to comply with discovery can have consequences. In this case, R.S. (“Wife”) was seeking (among other things) alimony. Leading up to the hearing date her ex-husband, W.E. (“Husband”) issued discovery asking for the production of documents. Husband asked for documents related to her income. In addition, he asked for an updated list of her expenses and “[a]ll documents supporting each and every monthly current expenses you wish to have the Court consider in calculating alimony….” Id. at 1. Despite the issuance of an Order on June 10, 2016 compelling the production of documents, Wife failed to produce the documents regarding her expenses. With regard to her income, she produced only a profit and loss statement from her accountant with no supporting documentation.

When the parties appeared for the ancillary hearing on January 4, 2017, Husband made a motion in limine to preclude Wife from presenting evidence relating to her income or her monthly expenses. The Court granted Husband’s motion stating:

Pursuant to 13 DEL. C. § 1512, the Court may award alimony to a dependent party. While the court can alleviate the prejudice to Husband in Wife’s failure to provide supporting documentation for her profit and loss statement by either attributing Wife with her gross receipts or attributing Wife with income from the Wage and Labor Survey, the same cannot be done for her expenses. Husband is severely prejudiced by Wife’s failure to provide documentation pursuant to the Requests on her expenses. Husband would have been able to prepare for questions regarding her expenses had the documents been provided. Wife did not even provide a bare list of expenses to Husband’s counsel or to the Court in the pretrial. If there were a lesser sanction which would address Wife’s failure without prejudice the Court would enter the lesser sanction. However, there is no lesser sanction.

Thus, the Court cannot permit Wife to testify as to her expenses. Without evidence as to Wife’s monthly expenses, dependency cannot be established as Wife’s reasonable needs cannot be determined. Wife was informed by the Court at the pretrial conference that she needed to provide the opposing party with certain documentation. In addition, two Motions to Compel were filed against Wife during a time when Wife was represented by Counsel. Therefore, the Court finds that Wife was aware that she needed to produce documentation relating to her income and expenses but failed to do so. Id. at 3 – 4.

Since the Court was unable to determine Wife’s reasonable needs, alimony was set at $0 per month.

The entire Letter Decision and Order may be found here.

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Leslie Spoltore is a Partner with the law firm Fox Rothschild LLP.  Leslie practices in Fox Rothschild’s Wilmington, Delaware office.  You can reach Leslie at (302) 622-4203, or lspoltore@foxrothschild.com.

As 2017 draws near many people start to consider their resolutions, promises to themselves, of things they want to accomplish in the next 12 months.  Eric Solotoff, a Partner in our Roseland, New Jersey office recently authored an interesting post entitled “The New Year’s Resolution Divorce.”  The topic, which seems to resonate with readers, examines the phenomenon of spouses who add filing for divorce to their “to do” list for the new year.

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Leslie Spoltore is a Partner with the law firm Fox Rothschild LLP.  Leslie practices in Fox Rothschild’s Wilmington, Delaware office.  You can reach Leslie at (302) 622-4203, or lspoltore@foxrothschild.com.

AppealThe appeal in the case of Jones v. Jones focuses on alimony and the question of whether certain expenses are reasonable. In this particular case, the conduct of the alimony obligor was a significant consideration.

Mr. Jones (“Husband”) was dissatisfied with the Family Court Order awarding his former wife, Ms. Jones (“Wife”), alimony. Seeking relief, he filed an appeal. The Supreme Court rejected most of his arguments but explored one related to medical expenses. Specifically, the Court remand the case back to the Family Court so that the Family Court could explain how it concluded that Wife’s out of pocket medical expenses of $300 per month and her monthly health insurance expense of $715 were reasonable.

On remand, the Family Court conducted a hearing to expand the record. At that hearing, Wife testified that the cost of COBRA insurance through Husband’s employer was $715 per month. Wife also testified that due to Husband’s failure to pay alimony as ordered she was unable to pay for the COBRA insurance. As a result, Wife was receiving medical benefits through Medicaid. She also testified to out of pocket medical expenses of $143.57 per month. Husband did not dispute that he failed to pay alimony. Based on this record, the Family Court held that Husband should not be able to benefit from his refusal to pay alimony and found the $715 monthly expense for medical insurance to be a reasonable expense even though Wife was receiving benefits through Medicaid. The Court also found $143.57 per month for out of pocket medical expenses to be reasonable.

The Supreme Court agreed with the Family Court’s conclusion that Husband should not benefit from his refusal to pay alimony.  The Court affirmed the finding that Wife’s medical expense of $715 per month and her out of pocket medical expenses of $143.57 per month are reasonable.

The Supreme Court Order may be read in its entirety here.

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Leslie Spoltore is a Partner with the law firm Fox Rothschild LLP.  Leslie practices in Fox Rothschild’s Wilmington, Delaware office.  You can reach Leslie at (302) 622-4203, or lspoltore@foxrothschild.com.

For many people facing the possibility of paying alimony after separation and/or divorce, the thought that their ex may cohabit makes them positively giddy. There is an expectation that cohabitation will prevent any future obligation to pay alimony. This expectation may be based on the language of Section 1512(g) of Title 13, which provides:

Unless the parties agree otherwise in writing, the obligation to pay future alimony is terminated upon the death of either party or the remarriage or cohabitation of the party receiving alimony. As used in this section, “cohabitation” means regularly residing with an adult of the same or opposite sex, if the parties hold themselves out as a couple, and regardless of whether the relationship confers a financial benefit on the party receiving alimony. Proof of sexual relations is admissible but not required to prove cohabitation. A party receiving alimony shall promptly notify the other party of his or her remarriage or cohabitation.

The view is, however, overly optimistic.  Cohabitation is not an absolute bar to alimony in every instance. The timing of the cohabitation is key. As the Family Court note in the case of C.G.B. v. R.S.B. (which recently became available online),

‘1512(g) is a termination statute, not an eligibility statute for alimony under Delaware Law.’  Delaware Courts have held that where a party has cohabitated, but the cohabitation ends prior to the time the party becomes an ‘alimony recipient,’ § 1512(g) does not preclude an award of alimony.

The decision may be read in its entirety here.

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leslie_SpoltoreLeslie Spoltore is a Partner with the law firm Fox Rothschild LLP.  Leslie practices in Fox Rothschild’s Wilmington, Delaware office.  You can reach Leslie at (302) 622-4203, or lspoltore@foxrothschild.com.

 

The American Bar Journal recently published an article about an interesting Kentucky divorce action. The article, entitled “Can mentally incompetent man obtain a divorce? Kentucky Supreme Court to decide,” highlights the case of Elmer Riehle. Mr. Riehle, who has been adjudicated to be disabled and incompetent, is asking the Kentucky Supreme Court to overturn a 1943 decision which held that Kentucky law does not authorize a mentally incompetent person to divorce.

In 1996, the Delaware Family Court was faced with a similar question. Although the Court was generally opposed to allowing petitions to be filed or maintained on behalf of an incompetent person, the Court ultimately concluded that an absolute bar prohibiting these actions is not appropriate. In rendering its decision the Court stated,

This Court agrees with the courts of other jurisdictions that generally a guardian [of an incompetent person] should not be permitted to initiate and maintain a divorce action on behalf of an incompetent ward. But this Court also believes, in accordance with the more recent decisions in other jurisdictions, that an absolute bar to the initiation and maintenance of a divorce action on behalf of an incompetent spouse is not statutorily mandated and that such a bar could lead to inequitable and untenable results in certain cases, especially when the incompetent spouse, when competent, expressed a strong desire to be divorced and when evidence establishes that but for the incompetency, that spouse would have proceeded with a divorce action.” Northrop v. Northrop, 1996 WL 861489, *9 (Del. Fam. Ct.).

In this day and age when people are living longer, and divorcing later in life, cases like Riehle and Northrop take on increasing importance.

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leslie_SpoltoreLeslie Spoltore is a Partner with the law firm Fox Rothschild LLP.  Leslie practices in Fox Rothschild’s Wilmington, Delaware office.  You can reach Leslie at (302) 622-4203, or lspoltore@foxrothschild.com.

 

Seasons IIA recent article in Medical News Today highlights a study by University of Washington Associate sociology Prof. Julie Brines and doctoral candidate Brian Serafini that found patterns in the timing of filing for divorce. Specifically, the study found “biannual patterns of filings for divorce – that divorce is seasonal during the periods following winter and summer vacations.” In exploring the reason for the patterns the article notes,

Prof. Brines mentions that troubled couples may see the holidays as a time to mend relationships, and they might believe that if they have a happy Christmas or a successful camping trip, everything will be “fixed” and their lives will improve.

However, in reality, those periods of the year can be both emotionally charged and stressful for many, and they may expose cracks in a marriage. The seasonal nature of divorce filings may reflect the disillusionment unhappy spouses experience when vacation time does not live up to their high expectation, the research team points out.

The study did not include data from Delaware. However, future research will examine whether these patterns are found in other states so stay tuned.

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Leslie Spoltore is a Partner with the law firm Fox Rothschild LLP.  Leslie practices in Fox Rothschild’s Wilmington, Delaware office.  You can reach Leslie at (302) 622-4203, or lspoltore@foxrothschild.com.

HouseA prior post examined House Bill 271 regarding the definition of “marital property.”  Marital property was generally defined as “all property acquired by either party subsequent to the marriage.”  House Bill 271, which has now been signed into law, expands the definition of marital property to include “jointly-titled real property acquired by the parties prior to their marriage, unless excluded by valid agreement of the parties.” With this expanded definition real estate that was acquired before the parties were married, perhaps even long before, could be divided in a divorce.

 

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Leslie Spoltore is a Partner with the law firm Fox Rothschild LLP.  Leslie practices in Fox Rothschild’s Wilmington, Delaware office.  You can reach Leslie at (302) 622-4203, or lspoltore@foxrothschild.com.

Dollar SignsIn addition to stress and host of other emotions, a divorce will likely raise a number of financial concerns. Lawyers and financial planners can partner to help clients through the court process.  Although each case is unique and requires specific consideration and analysis, the commonly asked questions set forth in my recent article in ThinkAdvisor, titled “Top 5 Things Financial Planners Need to Know About a Divorce,” can assist financial planners in their general understanding  of the divorce process and the role that finances play.

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Leslie Spoltore is a Partner with the law firm Fox Rothschild LLP.  Leslie practices in Fox Rothschild’s Wilmington, Delaware office.  You can reach Leslie at (302) 622-4203, or lspoltore@foxrothschild.com.