New Rule In Divorce Actions

Recently a new rule has gone into effect for matrimonial cases. Starting September 1, 2009 automatic orders will now go into effect whenever someone is served with both a summons and a copy of the automatic orders. These automatic orders are largely concerned with preserving the status quo of the parties' finances. The orders are both relatively simple and at the same time encompass much of what could be done by one party to financially harm the other.

The orders are broken down into five sections; the first restricts a party from disposing of property in any way without the court's or parties' consent. The second restricts any funds, stocks or other assets from being disposed or altered. The third section prevents unreasonable debts from being incurred against the parties' interests or property. The fourth section mandates that all health insurance policies be maintained and unaltered for the parties and their families. The fifth section mandates that all life, home and auto insurance policies will be maintained and unaltered.

These automatic orders should lower the need for early motions to restrict such funds and property in divorce actions. They may also change the calculus for when a lawyer seeks to serve the summons and automatic orders. Below is the full text of the Amendment of the Rule.

AMENDMENT OF RULE

Uniform Civil Rules for the Supreme and County Courts

Pursuant to the authority vested in me, and with the advice and consent of the Administrative Board of the Courts, I hereby promulgate, effective September 1, 2009, new section 202.16-a of the Uniform Civil Rules for the Supreme and County Courts, relating to automatic orders in matrimonial actions, to read as follows:

§ 202.16-a Matrimonial Actions; Automatic Orders

(a) Applicability. This section shall be applicable to all matrimonial actions and proceedings in the Supreme Court authorized by section 236(2) of the Domestic Relations Law.

(b) Service. The plaintiff in a matrimonial action shall cause to be served upon the defendant, simultaneous with the service of the summons, a copy of the automatic orders set forth in this section in a notice that substantially conforms to the notice contained in Appendix F. The automatic orders shall be binding upon the plaintiff immediately upon filing of the summons, or summons and complaint, and upon the defendant immediately upon service of the automatic orders with the summons.

(c) Automatic Orders. The automatic orders served with the summons
shall provide as follows:

(1) Neither part shall sell, transfer, encumber, conceal, assign, remove or in any way dispose of, without the consent of the other party in writing, or by order of the court, any property (including, but not limited to, real estate, personal property, cash accounts, stocks, mutual funds, bank accounts, cars and boats) individually or jointly held by the parties, except in the usual course of business, for customary and usual household expenses or for reasonable attorney's fees in
connection with this action.

(2) Neither party shall transfer, encumber, assign, remove, withdraw or in any way dispose of any tax deferred funds, stocks or other assets held in any individual retirement accounts, 401K accounts, profit sharing plans, Keogh accounts, or any other pension or retirement account, and the parties shall further refrain from applying for or requesting the payment of retirement benefits or annuity payments of any kind, without the consent of the other party in writing, or
upon further order of the court.

(3) Neither party shall incur unreasonable debts hereafter, including but not limited to further borrowing against any credit line secured by the family residence, further encumbrancing any assets, or unreasonably using credit cards or cash advances against credit cards, except in the usual course of business or for customary or usual household expenses, or for reasonable attorney's fees in connection with this action.

(4) Neither party shall cause the other party or the children of the marriage to be removed from any existing medical, hospital and dental insurance coverage, and each party shall maintain the existing medical, hospital and dental insurance coverage in full force and effect.

(5) Neither party shall change the beneficiaries of any existing
life insurance policies, and each party shall maintain the existing life
insurance, automobile insurance, homeowners and renters insurance
policies in full force and effect.

It is important to hire a lawyer who stays up to date on the latest developments in the law. For further information about The Law Offices of Brian D. Perskin please click here.

The evolution of Same-Sex Marriage has been a complicated process. Same-Sex Marriage is now legal in some of New York's closest neighbors:  Massachusetts, Vermont and New Hampshire as well as throughout Canada. This has lead to a situation where New York now recognizes Same-Sex marriages from other jurisdictions, albeit not allowing such marriages within the state. The expansion of Same-Sex marriage has brought with it all of the other issues that have always been a part of marriage. These issues involve the law in a number of practice areas, but mainly in matrimonial and familial practice. The article below describes the development of the law in this area, and gives some insight into how a practitioner should handle a client involved in a Same-Sex marriage.

New York Law Journal
As the Same-Sex Landscape Evolves
Prepare to serve this new group of clients.

By Arlene G. Dubin and Sheila Agnew

August 10, 2009

It is important to hire a lawyer who stays up to date on the latest developments in the law. For further information about The Law Offices of Brian D. Perskin please click here.

With such a limited number of Judges involved in Matrimonial law, Judge shopping is a serious concern. In a recent Suffolk County Court Decision, Justice Donald Blydenburg held that when it appeared a party to a matrimonial action switched attorneys only to cause the presiding judge to recuse himself, that the Judge did not have to recuse himself. Instead Judge Blydenburg ordered the party to hire a new attorney. This decision gives fair warning to those who would try to attempt similar types of Judge shopping. A New York Law Journal article below outlines the decision.

New York Law Journal
Court Calls Bid for New Lawyer 'Impermissible Judge Shopping'

By Vesselin Mitev

A state judge has rejected a Long Island man's attempt to hire a new attorney as "impermissible judge shopping" because the judge had previously reported the attorney to the grievance committee for an alleged disciplinary violation.

In a strongly worded ruling in response to the attorney's request for the judge's recusal in the matrimonial action, Suffolk County Supreme Court Justice Donald R. Blydenburgh (See Profile) said, "The appearance of impermissible and inappropriate Judge shopping is present and the prejudice to the Plaintiff far outweighs Defendant's right to this specific counsel."

The judge ordered the defendant, Salvatore Romanello to hire a different attorney in Gaffney-Romanello v. Romanello, 21508/07.

The Suffolk County Supreme Court decision appears on page 39 of the print edition of today's Law Journal.

Erin Gaffney-Romanello had sued her husband for divorce in 2007 but by 2009 the parties appeared on the verge of settling.

Starting in January 2009, several scheduled conferences were postponed, as the parties told the court they had "reached a settlement" and requested additional time to finalize the deal, according to the decision.

In April 2009, Mr. Romanello fired Schlissel Ostrow Karabatos, the Garden City firm that had been representing him, and retained James F. Hagney, a partner in Reynolds, Caronia, Gianelli, Hagney & La Pinta in Hauppauge.

Mr. Hagney had previously appeared before Justice Blydenburgh in an unrelated matter, where a litigant alleged that Mr. Hagney had violated the attorney disciplinary rules. The decision did not elaborate on the alleged violation.

As a result, Justice Blydenburgh "was compelled to forward the allegation to the Grievance Committee" and had to recuse himself from cases handled by Mr. Hagney while the grievance is pending.

"This recusal has been limited to Mr. Hagney personally, and the Court inquires of Mr. Hagney on the record each time he appears if he intends to represent that particular client, as opposed to his partners," the judge wrote.

Representing Mr. Romanello in April, Mr. Hagney and one of his partners, Peter Caronia, appeared before Justice Blydenburgh and sought his recusal.

The judge declined, writing that doing so would "constitute, in this Court's opinion, impermissible Judge shopping by Defendant of a case that is ready for trial, but represented to have already been settled by the parties."

Ms. Gaffney-Romanello's attorney, Michael P. Vessa, objected to the recusal as well, arguing that he believed the matter was settled based on his prior dealings with Mr. Romanello's former counsel.

Acknowledging that the "right to counsel is absolute," the judge refused to step aside, and cited People v. Mackey, 572 NYS 2d 424, for the proposition that there is no right to specific counsel of one's choice.

In Mackey, the Appellate Division, Third Department, held that an attorney who had "longstanding difficulties" before the judge assigned to the case was properly disqualified and recusal of the judge was inappropriate, given the judge's "intimate involvement in the matter almost from its inception and [the new attorney's] status as a newcomer to the proceedings."

The judge also pointed to a federal ruling, In re FCC v. Nextwave Personal Communications Inc., 308 F3d 137, where the U.S. Court of Appeals for the Second Circuit held that "we expect that lawyers will take pains to avoid appearing in any case in which their appearance may cause disqualification of a Judge assigned to the case."

To avoid disqualification, Justice Blydenburgh asked whether Mr. Hagney's partners or associates could handle the case, noting that Mr. Caronia is a "well respected matrimonial attorney" and pointing to two other lawyers, Catherine Miller and Dawn Hargraves, who are affiliated with the firm and handle matrimonial matters.

Mr. Hagney replied that only he would be working on the case, prompting his disqualification, the judge wrote.

"Clearly the Defendant, who had previous counsel...hired Mr. James Hagney solely to forum shop," Justice Blydenburgh held, in staying the case until September so Mr. Romanello can find a new attorney and get ready for trial, now set for Feb. 1, 2010.

In an interview, Mr. Vessa, of Vessa & Wilensky in Garden City, said the judge "did the right thing in view of the circumstances."

Mr. Hagney could not be reached for comment.

It is important to hire a lawyer who stays up to date on the latest developments in the law. For further information about The Law Offices of Brian D. Perskin please click here.

When legislators and Judges craft laws and orders they often seek to make rules that are permanent and unchanging. The problem is that life is predictably unpredictable. So many divorce cases that were ended when the economy was strong and people were making a large amount of money are no longer equitable in a world where salaries have dropped precipitously, but expenses have remained high. Many agreements that once made sense, are now overly burdensome for the payer. Due to changes in income the courts have become flooded with requests for modifications of agreements. The article below from the New York Law Journal outlines these problems and gives some insight onto how these requests for modifications are being handled by the courts.

Is our law equal to the challenge of today?

By Harriet Newman Cohen and Tim James

The past year has been a time of drastic economic decline, with millions losing jobs, real estate and stock values plunging, businesses performing far below accustomed levels, investment funds exposed as Ponzi schemes and the reduction or elimination of year-end bonuses in fields where such bonuses are typically the major part of total compensation. One result has been an increased number of applications for downward modification of support obligations.

A March 28, 2009, New York Times article captured the zeitgeist in describing the alarming number of new modification cases, both among the marginal earners and the wealthy, that are overwhelming the Family Court calendars.

This article explores the statutory and case law governing applications for downward modifications of established maintenance and child support. It also asks the question, "Is our law as promulgated and defined through case law equal to the challenge of these economically troubled times?"

The Governing Law

Domestic Relations Law (DRL) §236(B)(9)(b) provides that a court "may annul or modify any prior order or judgment as to maintenance or child support upon...a substantial change in circumstances." But a stronger showing is required to obtain a modification of child support or maintenance when the amounts to be paid have been set by the parties themselves, in an agreement, incorporated in, but not merged with, a judgment of divorce, or resolving a support proceeding.

In Boden v. Boden, the New York Court of Appeals established the preferred status of agreements between the parties on such matters, declaring:

Where, as here, the parties have included child support provisions in their separation agreement, the court should consider these provisions as [contracts] between the parties and the stipulated allocation of financial responsibility should not be freely disregarded....Absent a showing of an unanticipated and unreasonable change in circumstances, the support provisions of the agreement should not be disturbed.

DRL 236(B)(9)(b) ratchets the standard up even higher with respect to modifications of maintenance established by agreement of the parties, specifying that "no modification of a prior order or judgment incorporating the terms of said agreement shall be made as to maintenance without a showing of extreme hardship on either party[.]" (Emphasis added.) Where the requisite showing is made, the court may modify the maintenance provision "for such period of time and under such circumstances as the court determines."

Five years after Boden, in Brescia v. Fitts, the Court of Appeals made it clear that the requirement of showing an "unreasonable and unanticipated change of circumstances" to obtain a modification of child support applies only "when the dispute is directed solely to readjusting the respective obligations of the parents to support their child," and not where "the child's right to receive adequate support is at issue."

In the latter case, a court is free to exercise its discretion in determining how much child support is required to ensure that the child has adequate support and order an upward modification consistent with that determination. It is applications for downward modifications, however, that are the focus of this article.

Malingerers Beware

In the decades since Brescia and Boden, the courts have established demanding standards for downward modifications of spousal and/or child support.

Regardless of whether relief is sought from the mandate of a court alone or from the provisions of an agreement between the parties, the courts, wary of malingerers, have looked to the payor's "capacity to generate income" (Michelle F.F. v. Edward J.F., Jr., O'Brien v. McCann) or, more broadly, his or her "ability to provide support" (Freedman v. Hornike).

Thus, the courts require that a payor seeking a downward modification based on the loss of a job or decreased income demonstrate that his unemployment or underemployment was not of his/her own doing, and that he/she has made diligent efforts to find appropriate alternative employment. Movants who fail to do so typically see their motions denied.

In the recently decided Krup v. Fehr, however, Justice Jeffrey S. Sunshine gave the movant father a second bite of the apple. (See also Lonsdale v. McEwen, discussed below.) At issue was the $2,000 per month in child support that the father had agreed to pay for one child under a stipulation entered into when he was earning $170,000 a year. There was no dispute that his income had decreased to $90,000 at the time he made the downward modification motion.

The judge granted the father's application to the extent of ordering an evidentiary hearing based, among other things, on the father's failure "to offer any evidentiary support for his assertion that this decrease in earnings was not of his own making." The judge also directed that there be pre-hearing discovery. The decision provides a virtual primer on the case law governing downward modifications.

Although the court's focus is typically on changes in the payor's financial circumstances, changes in the financial circumstances of the payee may also be relevant on a motion for downward modification of maintenance or child support. For example, the wife's having gained employment was cited as a factor, or the factor, warranting a reduction in the maintenance amounts awarded in the judgment of divorce in Cross v. Cross, Bofford v. Bofford and Lipow v. Lipow.

The courts have emphasized repeatedly that, on any motion for downward modification of maintenance or child support based on the finances of the payor, a determination as to whether the requisite "change in circumstances" has been shown requires "comparing the payor's financial situation at the time of the application for a downward modification with that at the time of the order or judgment."

In making that comparison, the courts are concerned not just with the payor's income but with his or her overall financial circumstances (including assets and ability to maintain his/her own lifestyle in the face of alleged financial hardship) as indicia of the payor's ability to continue paying maintenance or child support at the same level.

'Unanticipated' Is a Must

Case law dating back to Boden establishes that where a party seeks modification of child support provisions contractually agreed to by the parties, the "change of circumstances" sufficient to satisfy the modification standard must have been "unanticipated" at the time of the agreement.

The courts have typically treated loss of employment as "unanticipated" without much discussion of the point. However, there have been cases in which the courts have held that the loss of employment was not an unanticipated change of circumstances.

For example, in Ellenbogen, the movant's business "had already experienced a precipitous decline in profitability and the loss of a major client at the time he entered into the stipulation," and in Commissioner of Social Services, the movant was on notice for eight years that he would lose his teaching license if he failed to obtain a master's degree; accordingly, his loss of his license for failing to obtain that degree was not unanticipated.

Showing, however, how fact-specific these cases are is Lonsdale v. McEwen. There, the separation agreement incorporated into the judgment of divorce specifically provided for a reduction in basic child support from $48,000 per year to $33,600 per year in the event that the father's income ($1.3 million per year at the time of the separation agreement in late 2001) should fall to $600,000 or less. The majority held that the father was entitled to a hearing on his motion, where "the parties to the agreement anticipated the loss of defendant's lucrative position but neither anticipated nor addressed either a prolonged period of unemployment or so huge a reduction in salary."

In late 2002, less than a year after the agreement was made, the father had lost his job. He was unemployed for most of 2003 and 2004. He had total income during those two years of only about $150,000, including the payments he received in 2004 from the job he got towards the end of that year which would pay him $200,000 a year prospectively.

The two dissenters, agreeing with the court below, would have denied the downward on the papers and without a hearing, as the father's loss of his job and the drastic reduction in income he suffered was far from "unanticipated" in that the parties had expressly contemplated that possibility and provided for it.

Successful Motions

If a downward modification movant has cleared all of the hurdles discussed above, the outcome of the motion will turn on whether the court views the change in circumstances as sufficiently "substantial," "unreasonable" or "extreme-hardship"-inducing (depending on which standard applies) to warrant a modification. Sometimes the court will grant but time-limit the relief.

This happened in A.R. v. N.R., where the court found that the husband had made a showing of "extreme hardship" in support of his motion for downward modification of both his maintenance and child support obligations (totaling $84,000 per year) under a separation agreement. The husband had suffered a "drastic reduction in income, from $300,000 per year at the time of the divorce to $66,000 per year (a 78 percent drop), through no fault of his own."

The court rejected the wife's contentions that the husband was living a "high lifestyle" and had "undisclosed cash," or more income than he claimed. But finding that the husband's prospects for the future were good, the court fashioned a creative decision, opting to grant a 13 1/2 month suspension of maintenance payments and a short (1/2 month) reduction of his child support obligation instead of a permanent modification.

Similarly, in Sheila C. v. Donald C., the court affirmed a one-year reduction in the movant's maintenance payments, holding that: "Respondent satisfied the extreme hardship standard. However, because he did not prove that his income will never recover, his request for a permanent reduction of his maintenance obligation was properly denied."

Applicant Beware

But if the downward circumstances are of the payor's own making, the court will not grant relief. So where an orthopedic surgeon decided to take an academic position in place of his former private practice, the court would not grant relief, finding that the reduction in his income was of his own doing.

But even apart from that issue, the court found the 31 percent decrease in the surgeon/former husband's income from $134,000 a year to $91,000 insufficient to establish the "extreme hardship" required to warrant a downward modification of the agreed-upon maintenance in light of, inter alia, his "comfortable, even luxurious lifestyle," his recent purchase of a house for $220,000 and his "not insubstantial" $91,000 income.

And job losses alone will not make an "involuntary, unreasonable change in financial circumstances" sufficient to warrant a downward modification, as the former husband learned in Cox v. Cox. He sought to be relieved of his $1,650-per-month child support obligation under a stipulation of settlement, pointing to the loss of his job with Verizon in late 2008, his new wife's loss of her job with Verizon at the same time and the fact that the $1,650 per month he was paying in child support now constituted 95 percent of his $1,741 per month in unemployment benefits. The court denied the relief, on the reasoning that:

• The payee wife, with whom the parties' daughter was residing in Florida, earned about $31,000 per year at her job.

• The husband had earned $318,000 in 2007 from his employment with Verizon, almost $200,000 more than his income of $123,000 for 2004, as stated in the stipulation of settlement the parties signed in December of that year.

• The husband and his new wife had earned a combined $414,000 from their employment with Verizon in 2007, and in that same year had received $498,000 for the sale of Verizon stock, bringing their gross income for the year to $912,000.

• The husband alone had been paid $476,000 by Verizon in 2007, leading the court to conclude that he had probably received a severance payment of approximately $150,000.

The Catch-22

Because of the requirement that a movant for downward modification based on the loss of a job demonstrate that he or she has made diligent efforts to find new employment, some delay in moving is probably necessary in order to make a facially sufficient motion.

But such a delay can be costly where child support is concerned, because, statutorily, child support continues to accrue until the date on which an ultimately successful motion for downward modification is made, and once that obligation has been incurred, the courts can provide no relief from it.

DRL 236(B)(9)(b) provides that "[N]o modification or annulment shall reduce or annul any arrears of child support which have accrued prior to the date of application to annul or modify any prior order or judgment as to child support" (emphasis added). As the Court of Appeals explained in Dox v. Tynan.

Child support arrears must be awarded in full, regardless of whether the defaulter has good cause for having failed to seek modification prior to their accumulation. "If a party obligated to pay child support wishes to avoid making payment, such as where his or her financial circumstances have deteriorated, that party must make an affirmative request for relief" (Scheinkman, Practice Commentary, McKinney's Cons. Laws of N.Y., Book 14, Domestic Relations Law §244, at 752).

In May of this year, the Court of Appeals stressed the "strong public policy against restitution or recoupment of [child] support payments." Thus, every day of delay before moving for modification is another day to which any downward modification ultimately granted will not apply. And yet, to file before having established a record of diligent pursuit of new employment is to invite dismissal of the motion as facially defective.

So, Set Your Own Standards

Looking forward, divorcing parties (payors and payees) can achieve far greater flexibility with respect to the availability of modifications that take into account the ups and downs of life by agreeing, in a separation agreement or stipulation of settlement, to standards of their own choosing for modification.

In Vincent Z. v. Dominique K., the First Department reversed the Family Court and gave the father a downward modification based on the standards the parties had set for themselves, citing its earlier reasoning in Colyer v. Colyer that "parties to a separation agreement may contractually provide for a support modification on a lesser standard than legally required."

Law Is Malleable, Pragmatic

Wary of opening the floodgates too wide and thereby inviting constant litigation over the reasonableness of maintenance and child support obligations that have already been fixed, the Legislature and the courts set high standards that make successful applications for downward modifications the exception, rather than the rule.

But the law as defined over the years has within it all of the elements necessary to meet the economic crisis facing us today: hardship, unforeseeability, being in extremis. The challenge for our courts is, as always, to weed out the malingerers and to provide relief where appropriate. The law, as written and interpreted, is sufficiently malleable and pragmatic, not dogmatic, to mete out justice, even in these economically troubled times.

Harriet Newman Cohen is a member and Tim James an associate in Cohen Hennessey Bienstock & Rabin. Ms. Cohen is the co-author of 'The Divorce Book' (Avon Publishers, 1994).

It is important to hire a lawyer who stays up to date on the latest developments in the law. For further information about The Law Offices of Brian D. Perskin please click here.

Times are tough, our financial markets are in shambles, the auto industry is emerging from a historic bankruptcy, unemployment is high and home prices have collapsed. These tough times has also created an anomaly in the world of divorce, where people who want to get divorced are being forced by their financial situation to stay together. The below article, which recently appeared in the Wall Street Journal, relates the story of several couples who either plan on getting divorced or are in divorce proceedings. These couples have decided that though they no longer want to be together, that they are better off cohabiting until the housing and job markets both turn around. It will be interesting to see how the ongoing economic downturn will continue to effect divorces.

Wall Street Journal

What God Has Joined Together, Recession Makes Hard to Put Asunder
For Some, the Downturn Keeps Divorce on Ice; Ms. Brewster, Husband Share a House Divided

July 13, 2009
By JENNIFER LEVITZ

Rhonda Brewster and her husband have decided they don't want to be married to each other anymore. But while they're ready to move on, they still can't move out.

They don't want to sell their home, in Huntsville, Ala., in a down market. They can't afford two households until Ms. Brewster finds steady work. So for now, they are living under the same roof but on separate floors.

The "kids are OK with it." says Ms. Brewster, a 39-year-old freelance writer and stay-at-home mother. "They just know that mommy lives upstairs and daddy lives in the basement."

Unwinding the ties of matrimony is rarely simple or inexpensive, but for many couples, the sour economy is complicating the process further.

Divorce lawyers say many couples are delaying the decision to dissolve marriages and are staying in unpleasant situations for fear of being on their own at a time of economic uncertainty. Others are being forced to live together after the divorce is final for financial convenience. That can strain the emotions and result in awkward negotiations about subjects like dating.

In Nashville, Tenn., Randy and Lori Word jointly filed for divorce in February, after 10 years of marriage, and expect to get a court date this summer. Meanwhile, they continue to share a house while Ms. Word -- who had been a stay-at-home mother in recent years -- tries to find work in marketing. "I don't see jobs out there," she says.

Things are getting a little cramped in the house. Mr. Word, a 36-year-old construction-project manager, keeps his clothes in boxes in the study and sleeps in the living room. "Luckily, we bought a very nice couch two years ago," he says.

Ms. Word, who is 37, works part time as a waitress while she is searching for full-time work. Some nights she returns home from a shift to find Mr. Word in the bed complaining that his back can't take another night on the couch -- and asking her to please sleep in the living room, which she does.

Both say they are actually getting along better now that they are no longer in an emotional marital relationship.

"We're a lot kinder to each other," says Ms. Word, adding, "We're not so offended and bothered by each other." Mr. Word says, "We've actually developed or redeveloped a friendship that I think had gotten lost a little bit."

A May survey by the Institute for Divorce Financial Analysts, a national organization for financial professionals who work on divorce cases, found that the recession was delaying divorces, and inspiring "creative divorce solutions" in living arrangements.

"People are saying, 'I've put up with it for the last 10 years, I can put up with it for another year,'" says Gary Nickelson, president of the American Academy of Matrimonial Lawyers. In a poll of 1,600 of its members, the group says, respondents estimated that divorce cases in the six months through March were off 40% from normal levels.

It's still unclear how the recession is affecting divorce rates overall, because of lags in government data. But courts in some major population centers say fewer people have been filing for divorce since the downturn began in late 2007. In New York County 9,349 couples filed for divorce in the first four months of 2009, off 14% from 10,848 in the same period in prerecessionary 2007, according to records from New York State Unified Court System.

In Los Angeles County, divorce filings in the first four months of this year dropped 3%, to 9,048, from the same period last year and are down 9% from the comparable span in 2007, according to records from the Los Angeles Superior Court.

A lull in divorce could be a silver lining in the recession, says Steve Grissom, president of Church Initiative, a Wake Forest, N.C., organization that runs DivorceCare, a national support group. Mr. Grissom says couples who postpone splits may be able to work through problems and reconcile.

Bonnie Hughes, a 51-year-old financial planner, says she developed stomach problems when the real-estate slump turned her marital split into "the divorce that never ends."

She and her husband divorced in February 2007, but for financial reasons continued to live together in their house in Chattanooga, Tenn., until the following May. Ms. Hughes moved out, but the ordeal wasn't over. They put the house up for sale, with each planning to use the proceeds to finance the next stages of their lives, Ms. Hughes says, but "it just wasn't selling."

They finally sold in August 2008, after dropping the price by $100,000 to $324,000, which was less than they had paid for the place four years earlier. She used her proceeds to move to Atlanta.

In Alabama, Ms. Brewster and her husband say they are avoiding complications by sticking together even as they plan to part.

The couple decided in March to split after 16 years of marriage. Ms. Brewster has hired a divorce lawyer and says she has been advised to have as little interaction as possible with her husband. Both say reconciliation isn't in the cards.

But to afford two separate households, they either need to sell the house they bought four years ago -- which they don't want to do in a down market -- or wait until Ms. Brewster has steady income.

In the meantime, Ms. Brewster lives on two floors of the house, residing with the couple's two children, plus the family pets: a guinea pig, a squirrel, a dog, two rabbits, two gerbils, five cats and five lizards.

Her husband lives in the finished basement, formerly the family's game room. "We had to take down the pool table so he'd have a place to sleep," she says. He sleeps on an air mattress, and has his own entrance and a full bathroom, though his only cooking equipment is a microwave.

Each calls the other before entering their respective domains; they schedule use of the washer and dryer and negotiate evenings out, Ms. Brewster says.

"He still takes the garbage out and mows the lawn. Sometimes, I will call him and say, 'I know you're eating frozen dinners; I cooked extra, come up,'" Ms. Brewster says. "I try to take the high road in front of the kids. Goodness knows they've seen the bad side of marriage -- the arguing."

Both have resumed dating and have even given each other advice on how to get back into the singles world. Ms. Brewster took the photograph of her husband that he put on match.com, the online dating Web site. On some Saturday nights, she says, they hire a baby sitter so they can both go out, and they share their plans so they won't run into each other.

Their living situation has scared away some potential suitors. "It freaks a lot of them out," says Ms. Brewster. "I tell them upfront: Here's my situation. Eventually I will move on, but I'm not going to do something to mess myself up financially."

It is important to hire a lawyer who stays up to date on the latest developments in the law. For further information about The Law Offices of Brian D. Perskin please click here.