The Live-In Divorce

A recent and tragic turn of events for one divorcing couple in New York has lead to some re-thinking of the state of divorce, custody, and co-habitation through it all today’s divorce landscape.

No one will deny or argue that divorce is an expensive and difficult process.  From lawyers fees, to moving fees and the day to day expenses that occur at a time when an income, for most people, is being cut in half.  In today’s economy, when money is even tighter people are finding new solutions and the “Live-In” Divorce has evolved.  This is when a couple going through a divorce makes the decision to continue to live together in the marital home.  It can be a decision made as a result of finances or the perceptions of our legal system, but for a family in New York it was a decision that proved fatal.

New York-area lawyer Sam Friedlander had filed for a divorce in April 2010. He and his wife, Amy Friedlander, continued to live in the same house in separate bedrooms even after a custodial agreement had been reached in April. Their $799,000 Cross River, N.Y., home had been on the market for five months.

Their divorce proceedings, described by some as contentious, took a deadly turn when on Oct. 18, according to police, Sam Friedlander bludgeoned his wife to death then fatally shot their two children before turning the gun on himself.

It has lead people to ask the question that can never be answered: could this tragedy have been avoided if they had chose to live apart?

Most lawyers and court systems agree that in cases of documented domestic violence moving out is the only option for the safety of the spouse and any children involved.  Even when there is no record of violence between the couple some couples are forced by finances to continue to to live in the same home.  However, why do couples chose to stay together even when they have the capacity to leave?

Many clients are informed that if they leave it could look unfavorable in court for both property and custody of their children.

Dr. Mark Banschick, a child psychiatrist in Katonah and author of the book series, ” The Intelligent Divorce,” said couples often feel financial and legal pressures to live together while going through a divorce. Banschick said he consulted with attorneys who explained that what’s driving parents to stay together is mainly the issue of custody and the idea that judges will see the person who moved out as less responsible.

” This is a patronizing, 19th-century version of marriage and divorce where the notion of male judges is that any man who leaves his wife and family should be punished,” he said. ” We must stick to the 21st-century, evaluate every family based on its own merits … We should not create a situation that compels people to stay together when they shouldn’t.”

Jane Aoyama-Martin, an attorney and executive director of the Pace Women’s Justice Center at Pace Law School, said ” live-in divorce” cases are often the result of finance and/or custody and property issues. Sometimes people don’t want to leave because they think it could hurt their ability to get custody of the children, she said, or it’s a control struggle over who has rights to the house.

Tamara Mitchel, a matrimonial and family attorney in White Plains, said that child custody agreements are often reached before a parent leaves the house. If not, she said, it could be considered a ” de facto agreement” by the spouse who moved out to give up custody to the spouse left with the children.

Despite the perceptions in the legal system some couples are working to find a solution that benefits them both legally, financially, and within their family.

Dr. Grant Mitchell said he heard of one recent case in which a divorcing couple had their lawyers draft up an agreement, saying they would be living separately but that they were not abandoning their kids.

” We think that’s a healthier approach rather than forcing yourself to stay in an unpleasant situation,” he said.

Other couples have found solutions such as renting an apartment and developing a rotating schedule for the parent who stays in the apartment and who stays in the marital home with the children.  This avoids placing more relocation stress on the children and puts both parents on an equal playing field with time in the marital home.

No matter the solution to habitation during a divorce it is paramount for both parents to consider their personal well-being as well as the well-being of their children.

If you are struggling through a divorce with a home, children, or other complex factors contact the Men’s Divorce Law Firm today to schedule an appointment with Managing Attorney Jeffrey Feulner.