I am so excited that the healthcare reform bill has finally been passed.  Not only for myself but for my clients who opt out of certain divorce settlements because of the cost of obtaining their own healthcare coverage.  For instance, a client of mine recently spent several years and several thousand dollars trying to settle a case only to agree to a Separation Agreement so that his ex-wife can remain on his health insurance since she had a pre-existing condition.  Up til now, well actually not until 2014 when the pertinent provision goes into effect, health insurance providers were able to deny coverage based on pre-existing conditions or they would charge astronomical premiums for this group.  In fact, part of the basis for the Domestic Relations Law, Section 177, enacted in 2007, was to put all parties on notice that the provider/spouse may no longer be required or permitted to continue coverage for the non-provider/spouse.  Oftentimes it was the wife, especially unemployed or underemployed wife, who was covered by her husband’s health insurance and was not aware that his employer prohibited continued coverage once the parties divorced.  This created a huge problem for many women, particularly  middle-aged and older, when it was difficult for them to obtain coverage on their own since they are more susceptible to particular illnesses.  If they are of Medicare age then not so much, but the younger wives had very few options.  Additionally, in non-maintenance divorces, having the resources to obtain health insurance was almost impossible, even more so when the wife had a pre-existing condition.  So now, under this new law, more uninsured and “uninsurable” will be covered by one provision or another.

As for child support, the cost of health coverage is an “necessary add-on expense”, which is added to the basic child support obligation of the non-custodial parent.  This meant that in cases where the basic child support amount already consumed most of the custodial parent’s disposable income, that the cost of adding a child to his health insurance made the circumstances even worse especially if the child had major health issues.  Now, since this portion of the healthcare reform goes into effect immediately, no insurance provider can deny a child with pre-existing condition and thus the custodial parent’s cost for maintaining coverage does not have to send him to the poorhouse.   On the other hand though, the provision that states that providers can no longer “kick off” dependents once they reach 18 years old will certainly create a burden for the non-custodial parent.  In New York, the child support obligation terminates at the age of 21, unless emancipation occurs before then, but the add-on expense of maintaining health insurance coverage ended at 18.  So now, the custodial parent may petition the court to continue coverage until at least 21, since the legislative and judicial branches deal with how the new bill affects that provision of the Family Court Act.

Child custody and juvenile delinquency cases are also affected by the new law.   Since serious health concerns of the child and the ability to provide for them may be a factor in custody determinations and many juvenile delinquents need therapeutic/psychological treatment, ensuring  that coverage will be intact will affect how the courts address these issues.  Despite the fact that Medicaid, and other government sponsored programs, covers millions of children in New York there are still many who were not eligible for any of these.  For more information go to www.healthcarereform.gov

     I don’t know anyone who does not have a Facebook, Twitter and/or Myspace account these days.  And although these social networking sites are constantly trying to adjust their sites to take into account recurring issues of privacy, usability and popularity, if you interact with these sites in any form there is a possibility of your posts being admitted into evidence (although other legal issues may arise from such accounts, i.e. defamation, investigating witnesses or jury members or proof of criminal activity) in your contested divorce or child custody, child visitation or child support matters.  Not only are parties savvy enough to check here to keep track of what is going on with you, but lawyers too are relying on information posted on these sites to assist them in prevailing in thier case in court.

     Let’s look at some of the legal implications that pertain to your divorce.  First, in a contested divorce on the grounds of adultery, the Domestic Relations law in New York states that:  adultery is the commission of an act of sexual or deviate sexual intercourse, voluntarily performed by the defendant, with a person other than the plaintiff after the marriage of the plaintiff and the defendant.  Proof of adultery is the burden of the plaintiff (or the party alleging adultery) and although it does not require “direct” evidence, circumstantial evidence must be “corroborated” in most cases.  This means that a party direct testimony admitting adultery or a spouse’s direct testimony, is not enough.  Corroboration means that someone other person, not a private investigator or prostitute, must provide evidence of the adulterous acts.   So, if the adulterous spouse’s paramour leaves some telling pictures, posts, etc. on his or her Facebook page, that person may be subpoenaed to testify in your divorce trial.

     So you have a child support matter pending.  The non-custodial parent is claiming that he or she is unemployed, underemployed or merely lying about facts surrounding employment.  Particularly in a case where that party claims to be unemployed but has a “side” job that brings in some income.  He has a page that either promotes his coveted job or has “friends” that have used his services and make posts that support this.  Although, this may not be enough to prove the amount he or she actually earns at this “side” job, it certainly opens up the door to investigating the basis child support obligation further.  

      Similarly, in child visitation or custody cases the posts may open up the door to exploring facts in dispute between parties.  Although in child visitation and custody cases, not only are the parties’ entries up for scrutiny, but when the children have an account and make posts it may give either parent additional ammunition against the other based on the content of the posts.  Issues of inappropriate behavior, missed or denied visits, disputed interactions, scheduling conflicts or other violations are susceptible to being either supported or discredited when the parties have active accounts on Facebook. 

     As an attorney, I have not gotten to the point where I automatically do a search on Facebook to find incriminating evidence in my contested divorce, child visitation, child custody or child support cases.  However, I will encourage my clients to do their own due diligence and find whatever they can on any of the social networking sites.   Once they do, I will then discern what I will explore further.

      A recent study was published by the Center for Disease Prevention and Control which indicated that depending on race, socio-economic class and age, living together before actual marriage may be beneficial to the longevity of the marriage.  However, there were other sources who conducted similar studies which rendered very different results.  Grant it a myriad of factors were considered, i.e. whether the couple was actually engaged while they were cohabitating, that impacted the varying results.  However, either way the fact remains that there is more to predicting the strength of a marriage than whether a couple actually lives together beforehand.  Moral values, religious and spiritual beliefs and personal views on family and marriage play a much more significant role than these external factors. 

     There is usually some hidden agenda in publishing most of these studies/surveys, hence the disparity in the results.   In addition, many of these reports have an interest in disseminating information that promotes their own platform.  My aim here is to highlight how New York laws, courts, law enforcement and social agencies differs in their message by how they favor either a married couple or a cohabitating one.  Let’s take a look at the laws that apply to couples, to keep it simple I will focus on heterosexual couples.  Both childless couples and couples with children, are subject to laws pertaining housing, criminal, family law, elder and consumer law on the state level, there are federal laws that broaden the areas of law to immigration, bankruptcy and tax law.  The manner in which these laws affect couples differ depending on their marital status, which includes divorce but we will not spend too much time on that category.

     Criminal laws like domestic violence, fraud, sexual assault and harassment vary in their application based on the marital status of the parties.  In New York, domestic violence infractions, which include harassment, menacing, assault/battery and contempt, in substance may be brought against parties whether married or not.  However, the penalties for these crimes vary depending on their status.   For instance, if there is a final Order of Protection issues at the disposition of the criminal case, there may be stipulations or conditions included which take into account the fact that the parties are married.  Restrictions, which are typically more broad when the parties are married, may permit contact between the parties in very specific circumstances while cohabiting parties may not be given such consideration.  In fact, if a Family Court Order of Protection arose out of the domestic violence incident, up until recently cohabitating parties were prohibited from obtaining such Order if they did not have a child in common.

     In family law matters, such as child support, child custody or child visitation, being married versus merely cohabitating also results in varying treatment.  For the most part, family law issues are dealt with in Supreme Court (only if the parties are divorcing or were recently divorced) or in Family Court (although married parties may have their family law case heard here, cohabitating parties must have their case heard in this venue).   Let’s take child support, if the parties are married and the child is born while the parties are married, there is a presumption that the child is of the marriage and therefore the financial responsibility of the married parties.  Conversely, there is no such presumption where the parties merely cohabitate, the custodial parent has the burden of proving paternity (unless there is a valid acknowledgement of paternity).  In child custody cases, although there is no explicit difference in how the courts treat parties that are married as opposed to those cohabitating, some judges, attorneys and forensic experts, will give much more careful scrutiny to both parties when the family is more intact, and hence married.  Specifically, the judge may consider the fact that both parents may intend to stick around for the long haul when they are married, and therefore factor the impact of having two active or present parents in making the child custody determination.  A cohabitating parent may not get such significant consideration, with the assumption being that since he or she made no commitment that their future intentions are more elusive.  This is typically the same thinking with regards to child visitation, with a much more profound difference being in a situation where the non-custodial parent is the party that is married as opposed to cohabitating.  In that case, the court will most definitely weigh the fact that the non-custodial parent is married, giving less weight to him or her if they are cohabitating. 

   Wills, power of attorney or deeds also differ in effect when the parties are married.  These documents, in New York, are developed separately and specifically with regards to parties’ marital status.  The inchaote rights, tax implications and possessory interests under each of these legal documents will differ based on if the parties are married at the time of their drafting. 

     Although it may be legally beneficial for some to marry, for others cohabitating is preferred as a matter of economic convenience.

Feel free to contact my office for a free telephone consultation.