Sunday, October 30, 2011
Sam Friedlander case spurs look at 'live-in divorces'
In the wake of the Lewisboro family slaying, divorcing couples have become increasingly apprehensive of their own relationships, clinicians say.
"This has stirred up people in a lot of different ways," said Dr. Grant Mitchell, commissioner of Westchester's Department of Community Mental Health. "People involved in divorce, particularly where it's contentious, are asking 'Do I have to be concerned for my safety?' "
In today's economic climate, it is not uncommon for divorcing partners to live together as their case winds its way through the courts, a process that can take months or even years. Legal strategies related to custodial and property rights are also behind warring spouses who co-habitate.
Some couples, experts say, can manage the situation. But, more often, it can be problematic and even dangerous.
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 home had been on the market for five months.
Their divorce proceedings, described by some as contentious, took a deadly turn when, according to police, Sam Friedlander bludgeoned his wife to death then fatally shot their two children before turning the gun on himself.
It will never be known whether the Friedlander tragedy could have been avoided had they lived apart.
It is clear though that opting to live together, particularly in acrimony, can prove deleterious to the entire family.
"In most cases, it's something that we find causes a lot of difficulty and stress for parents and kids," Mitchell said.
He and other clinicians are beginning to question whether living apart during a divorce action is a legitimate cause for concern in the court, he said.
"We often hear 'I can't leave because I've been told it's not going to look good in court,' " Mitchell said. "But is that a reality or a misperception? There needs to be a dialogue."
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.
Those can be factors in court, she said, depending on the case. She cited the example of a spouse leaving and then returning for the kids in a week having a better chance of getting custody than if they came back for them in a year.
She doesn't doubt, she said, that attorneys may encourage their clients to stay in the house as a strategy to help their case.
"The thing that I hope lawyers remember is that when it is a hostile situation for a live-in divorce, especially when there's a history of domestic violence, safety is paramount," she said.
The Pace Women's Justice Center handles about 2,800 domestic violence and elder abuse cases in Westchester and Putnam counties each year. Oftentimes, their cases involve "vacate" orders, Aoyama-Martin said.
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.
In cases where a person can prove there is violence or threats that reach a certain "legal standard," there is recourse, Mitchel said. The courts, she explained, can award a spouse "temporary exclusive occupancy" of the marital residence while the divorce is pending. Orders of protection, she said, can also be granted and range from no contact whatsoever to simply not "harass, assault, threaten or intimidate" a person.
The latter can be issued to parties living together, she said.
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.
Banschick said "birdnesting" or keeping the house and renting an apartment so that the parents rotate among residences during the divorce action is an innovative way to maintain stability for the children and economic feasibility.
"You're taking the burden off the children and putting it on parents where it belongs," he said.
Banschick cautioned that if parents must co-habitate during a divorce, it is vital they do not put the children in the middle and do not use them as messengers. He recommended therapy for the family during that time in order to make "communication less toxic."
"In a hostile divorce, with people living together, it can be untenable to the children because the emotional tensions seep into their souls," he said.
Last year, New York became the last U.S. state to pass a no-fault divorce law, allowing couples to part ways without having to place blame on one party for the marriage's failure. Before, they could not end their union without proving one of six grounds including cruel and inhuman treatment, adultery or abandonment for a continuous period of a year or more.
It remains to be seen how this new law will affect divorce proceedings. However, no-fault divorces, Mitchel said, will allow clients to save money on lawyers and also remove one area of contention in terms of assigning blame.
In 2009, there were 49,816 divorces in New York, including 2,307 in Westchester, 540 in Rockland and 201 in Putnam, according to the state Department of Health. Of those 49,816 cases, 34,091 cited abandonment as grounds for the divorce, including 1,742 in Westchester, 413 in Rockland and 138 in Putnam.