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Welcome to California: why wealthy spouses often seek out other jurisdictions

Further evidence that California is an excellent jurisdiction for a spouse who does not have complete knowledge of the other spouses’s financial condition is supplied by the just-issued decision in In re Marriage of Straus, 2009 WL 98447 Cal.App. 4 Dist.,2009.

In that case the appellate court upheld an award of $3,000 in sanctions against the husband because he did not voluntarily respond to two letters from his wife’s attorneys seeking information about his retirement benefits.

Section 271 of the California Family Code provides that “the court may base an award of attorney's fees and costs on the extent to which the conduct of each party or attorney furthers or frustrates the policy of the law to promote settlement of litigation and, where possible, to reduce the cost of litigation by encouraging cooperation between the parties and attorneys.”

Since the wife filed a motion to compel discovery the trial court required the husband to pay a penalty which was in excess of the amount of the legal fees that the wife had paid her attorneys to make the motion.

The appeal court ruled that, “These facts support a finding that James's conduct frustrated the policies of promoting cooperation, settlement of litigation and reduction of litigation costs that underlie section 271, because Candyce was forced to file a motion and serve discovery to obtain James's cooperation. Because section 271 allows the imposition of sanctions when a party's conduct frustrates its underlying policies, the trial court was within its discretion to impose sanctions on James.”

California’s approach to discovery, which requires litigants to voluntarily provide full access to their financial circumstances, stands in total contrast to the approach in most other jurisdictions, and especially civil law jurisdictions in other countries. It is why wealthy international spouses with a potential California divorce will often look for any possible way of avoiding the California courts, perhaps by asserting lack of jurisdiction or by rushing to file first in another jurisdiction.


Kids keeping the peace when parents divorce

This article from moms logic

Today's New York Daily News has a headline that screams Madge's Lourdes Works a Miracle. No, Madonna's teenage daughter isn't healing the sick or parting the seas. According to the paper, what Lourdes has done is even more miraculous -- she's managed to make peace between divorcing duo Madonna and Guy Ritchie.

A source tells the paper that 14-year-old Lourdes came the couple begging, "Please don't be mean to each other." The teen told her mom and Guy that she wanted everything to be as friendly as possible. According to the source, Guy and Madonna have buried the hatchet and are making every effort to make things as civil as possible for the sake of the kids.

The fact that teenage Lourdes is managing to do what even divorce lawyers can't is a definite sign of the times, according to psychologist Cooper Lawrence. Cooper, author of "The Cult of Celebrity" tells momlogic, "It's different now than when we were kids. The way they parented us is different from the way parents raise kids today. Today, kids are involved in every family decision from what car are we going to buy to what kind of dog are we going to get. You can't have it both ways -- you can't expect the child to be involved in family decisions and then all of a sudden make a life-changing decision and expect the child to have no say."

Cooper also adds that watching Lourdes take an active role in her parents' divorce sends a powerful message to other children of divorce. "Lourdes is a little girl who grew up with the paparazzi as part of her public life. She has a public image and it matters what she says and does. When she says be nice to one another it sends a different message, it's influential to other kids."

But even so, Cooper cautions about having children act as peace keepers in their parents divorce. She asks parents to be careful about their behavior and warns that children should never be put in a situation where they feel they need to step in to keep the peace. "The children have nothing to do with the divorce. When you put the kid in the middle you're screwing up your kid. It's cruel. Children learn from your behavior and how you treat people."

As a rule, Cooper tells momlogic that parents need to keep the arguments to themselves; no child should have to hear you badmouth, fight or yell at each other. "Some kids take this stuff personally. You don't want the kids to somehow think that the divorce is their fault -- and even if you say that it's not, if you continually bad mouth your ex to the child, you're sending the message that somehow the child is involved."

And above all, remember, although you want to be your child's friend, you are first and foremost a parent. Don't use this as an opportunity to talk about what went wrong in your relationship, that's not a conversation any parents should have with a child. Cooper explains, "Don't talk to the kids about the divorce except for conversations about their own feelings. You have to reassure them that it's going to be ok. Mommy and daddy might not love each other any more but we both love you."

Los Angeles Family Law

New form required for divorced spouses to get military pension survivor benefit


Military family law guru Mark Sullivan of Raleigh tipped me off about this. This new form will become the only way to elect military survivor benefit coverage in a divorce. Its use is mandatory after Sept. 30, 2008 but it can be used even before that. The form, like the informal letters that were used for this in the past, is subject to a one-year deadline, which Mark describes as follows:

Divorce Law: Breastfeeding and Child Custody

Another article I wrote for divorce 360. If you are interested in this subject I suggest you take a look at Jill Lapore's excellant article in the New Yorker about the history of breastfeeding and baby food at http://www.newyorker.com/reporting/2009/01/19/090119fa_fact_lepore

Legal: In Custody Dispute after Divorce, Can Breastfeeding Limit Overnight Visitation?


Q: Our son is now 18 months old and I am involved in a custody dispute in which I am asking for overnight custody. His mother is still breastfeeding and argues that overnights would disrupt her breastfeeding schedule and her bonding time. I am convinced she is only doing this to deny me visitation. She has produced studies and data showing the health, psychological and emotional benefits of breastfeeding. She has even argued that breastfeed is a “privacy right” guaranteed by the Constitution. I thought that breastfeeding was recommended only for the first 12 months and I cannot understand why she can’t pump so that I can feed my son when I have him for overnights.

A: I am not a pediatrician, but your wife is correct that there are many health, psychological and emotional benefits of breastfeeding for both the baby and the mother. Studies show that breastfeeding increases an infant’s immune response and leads to fewer illness, improves growth and vision and accounts for an increase in cognitive capacity and higher IQ. It also increases bonding between infant and mother and improves the mother’s health reducing the risk of breast cancer and diabetes. [1]
Before we get to the big question, you make a good point that one solution, if the mother were willing, would be for her to pump and provide you with enough breast milk to get you through the night. Contrary to your wife’s claims there are no cases guaranteeing a privacy right in the Constitution, but it is unlikely that a Court would order her to pump since an order would be difficult to enforce.[2] You would probably have to use formula.

In any case, it sounds like Mother would not agree to this solution. She may argue that she cannot pump enough or that pumping might affect milk supply or lead to “nipple confusion.” [3]  In the face of these objections, you would have to consult a pediatrician. If pumping is not the solution, it leaves unresolved the bigger question which is whether the “breast is best” argument trumps all others. While breastfeeding is important does it outweigh the benefits of father-child bonding and, if so, for how long? There is a wealth of developmental literature that shows that it is in the best interests of the child to have early father-child bonding and sooner or later bonding requires overnight custody. 

The problem in your case is that the data doesn’t really address this balancing of interests and needs. The American Academy of Pediatricians in a revised 2005 policy statements states: “Exclusive breastfeeding is ideal nutrition and sufficient to support optimal growth and development for approximately the first 6 months after birth. Infants weaned before 12 months of age should not receive cow's milk feedings but should receive iron-fortified infant formula. Gradual introduction of iron-enriched solid foods in the second half of the first year should compliment the breast milk diet. It is recommended that breastfeeding continue for at least 12 months, and thereafter for as long as mutually desired.” 

So you might argue that by 18 months the benefits of breastfeeding are outweighed by other factors such as father-son bonding. This conflict also needs to be viewed in a wider context. Public recognition of the health benefits of breastfeeding is a relatively new phenomenon. According to U.S Census Bureau data in the 1970’s only 10 percent of mother’s continued to breastfeed their children for six months and from 1990-1993 this figure had only risen to 28.4 percent.  It is highly likely that the lawyers and judges handling your case were themselves formula fed with no long term harmful consequences. It would seem that on balance you have a good argument for seeking overnights although much depends on many other factors. You should in particular determine whether the Courts in your area have issued any parenting plan guidelines in your jurisdiction.

For example, Los Angeles County Superior Court has issued tips for creating a parenting plan that do not recommend overnights for non-custodial parents for babies up to 6 months. Instead they recommend three non consecutive days per week for up to two hours each day. For infants, 7 to18 months of age overnights are only recommended, if appropriate. Again it may be necessary to retain the services of an expert or to request that the court order a child custody evaluation if you still cannot agree. You might even consider serving a subpoena on your son’s pediatrician to see what his or her opinions are. Other considerations which you should explore are whether the mother has exclusively breastfeed other children for such a long period of time and, if she works, does she exclusively breastfeed at work.

[1]  For an excellent discussion of baby development see “How the Brain and Mind Develop in the First Five Years of Life” written by Lisa Eliot, Ph.D (Bantam Books, 2000).
[2]  See Shana M. Christtrup, “Breastfeeding in the American Workplace” Journal of Gender, Social Policy and the Law [Vol 9:3] at
[3]  Studies show that “nipple confusion” – difficulty switching from one form or feeding to another -- is most prominent when an infant is about three months old.

Warren R. Shiell has practiced law for more than 15 years in the United Kingdom, New York and California. His firm in Beverly Hills, Calif., is devoted exclusively to family law issues. His web site is http://la-familylaw.com/.

Legal: Five Uses and Abuses of the Internet in Divorce Cases

Something I wrote for divorce 360


    Given the number of people who use the World Wide Web, here are five uses and abuses of the Internet in divorce cases.

1. Long-Distance Web Cam Parenting. 
Web cam technology over the Internet using software such as Skype or IChat allows parents who re-locate or relatives such as grandparents who live far away from their grandchildren to communicate on a more immediate and personal level. Some courts are even mandating web cam visitation in their orders. States such as Utah, Wisconsin and Missouri have made virtual visitation part of state law. Other states such as California and Ohio are considering the option. There is a potential downside. Sherry Turkle, a psychologist at the Massachusetts Institute of Technology, conducted interviews with older grandchildren who video chat with grandparents who said that they they visit them less because they have already “seen” them.  
2. Finding Evidence. 
Searching public social networking sites such as Facebook or Myspace or dating sites are a free and legal way of finding evidence. How do you tell the judge that you income is $30,000 when you claim on your dating profile that you make $200,000 per year. How do you explain to the Judge the picture of you posted by someone on Facebook of you at a party in a drunken stupor when you were said you were at home doing homework with the kids? An extreme example would be the case of Joshua Lipton who according to published reports was sentenced to two years in prison when the Judge in his drunk driving case saw a picture of him posted on Facebook at a Halloween party wearing a "prisoner" costume with "jail bird" written on his orange jumpsuit. 

3. Wiretapping.
There is a clear distinction between legally obtaining evidence from public posts on social networking sites and illegally wiretapping your spouse by recording private telephone conversations or by installing spyware on your spouse’s computer. The latter is illegal. Most likely the evidence will not be admissible in court and may result in civil and criminal sanctions. In one reported divorce case in New Jersey a wife was granted $7,500 when her husband installed spyware on her computer to track her e-mails. Such wiretapping may be subject to state and federal criminal sanctions. For example, in California, the Family Code provides that interspousal wiretapping via use of electronic devices such as tape recorders is illegal and its fruits inadmissible by statute. If you want to secretly record a telephone conversation you must first obtain a court order.  

4. Communicating.
In high conflict cases, the court may order the parties to communicate by email as a way of lowering tension and documenting communications. Some companies such as OurFamilyWizard have developed software specifically designed for divorcing families so they can keep track of their communications, share journals and calendars and post the times and dates of events such as teacher parent conferences and school plays. However, the Internet is not the place to vent your anger and frustration at your ex. If you make threats or use obscene or derogatory language in an e-mail or posting, you will probably find that the other side will use it as evidence against you. If you post something that is open to the public the consequences can be even more serious. In Colorado, the press reports that a man was charged with criminal libel for allegedly posting on craigslist accusations that his former lover traded sex for legal services from her attorney.  

5. The Cause of Divorce.
By now everyone is aware that cyberspace relationships often lead to marital strife and divorce especially when they result in real life affairs. One of the most bizarre stories of cyberspace romance comes from the United Kingdom where a women filed for divorce when she found out that her husband’s alter ego “Dave Barmy” was having sex with a call girl in the game Second Life. In real life in his defense the husband claimed that he was forced to look for affection elsewhere due to his real wife’s addiction to the game World of Warcraft.
For more information visit www.la-familylaw.com


Here's where I'm quoted on divorce 360 about wiretapping:

Experts Warn People to Follow the Law when Considering Spying on Ex-Spouses




    Experts are warning anyone involved in divorce to make certain they don’t step over any legal lines after a Nebraska man filed a civil lawsuit against his ex-wife, saying she hid a voice recorder in his daughter’s teddy bear to spy on him.

"This is actually a great story about the extremes a psycho mom will go to, and how it only increases the rancor" in a divorce, said California family law attorney David Pisarra. He said the bigger issue, is "how people try to get dirt on the other side and how fruitless it usually is."
According to a report in the Associated Press, the federal lawsuit alleges that the woman and her father tried to use the voice recordings in a custody battle involving the couple’s young daughter. The lawsuit seeks $700,000 plus damages for violation of privacy and violation of state and federal wiretapping laws.

Bill Mitchell, a private investigator who has been featured on the Dr. Phil show, said it’s common for former spouses to consider spying on their ex-partners. His agency has received thousands of questions about voice and video recording from people all over the country. He always advices they check their state law, which varies, and the federal law.

California family law attorney Warren Shiell agreed: “I always advise clients against this kind of eavesdropping since it is illegal. Federal law and most states have passed wiretapping statutes that make it illegal to listen in or record conversations without consent of both parties or court order.”

“I have had cases where the client has told me that their spouse is harassing them over the telephone or making derogatory remarks about them to their children. We’ve gone to court to get an order allowing both parties to record telephone conversations and those recordings are OK to use,” Shiell said.

In the Omaha case, local media reports suggest the woman, Dianna Divingnzzo, used the teddy bear to conduct surveillance because it was her daughter’s favorite toy. The bear’s head was removed, the voice recorder implanted and the head reattached as part of the scheme, which was supposed to monitor visitations and provide information that would keep the child’s father, William Duane Lewton, from obtaining additional custody rights. The child’s father recently was granted partial custody.

“Each time these incidents surface, it’s a reminder to the public that no one is above the law,” Mitchell said. Cases like this one show how “desperate” people are -- “violating other people’s rights just to win a custody battle,” he said.The irony of this case, according to Mitchell, is that the woman and her father “recorded hundreds of conversations,” but “the most important conversation missing is the one with their attorney” who, the lawsuit claims, approved the wiretapping. The attorney has disputed that claim.

“I suspect they never consulted with an attorney on this very critical decision,” Mitchell said. “And if they had, no taped conversations would have surfaced in their child custody suit, thus no violation of state and federal statutes.” Mitchell thinks the ex-husband might win the case in court. “The act of covertly installing a tape recorder inside a teddy bear took planning, management and countless hours of time all to collect shreds of evidence…. Even if his conversation proved he was pedophile, the evidence was obtained illegally and thrown out. Too bad they didn’t hire a professional investigator to prove their case against him.”

“If Dianna or Sam Divingnzzo recorded conversations inside their own residence, vehicles, or in the presence of William Duane Lewton this episode is a non-issue,” said Mitchell, whose firm conducts electronic debugging and countermeasure services in marital and custody battles. “But when you use any form of a recording device (without permission) to document conversations inside the residence of another is a classic case of “wire tapping.” 

In addition, Mitchell said wiretapping laws now prohibit videotaping. “With the inception and development of miniature cameras, our investigative industry must exercise caution” when using them. In one instance, his firm discovered an ex-spouse, no longer living with his wife, had installed spyware on his ex-wife’s computer before their divorce, “accessing all her electronic communications.” “We blocked his access and future invasion of privacy,” he said.

Mitchell pointed out that former Hollywood private investigator Anthony Pellicano is in federal prison for wiretapping. “His contempt for the law finally caught up with him,” he said.
“Over my career I’ve heard of and from desperate people repeatedly seeking short cuts to our legal system. They want to record their partner’s conversations as evidence. I encourage them to record the exchanges but only when they are part of the dialogue,” he said. The bottom line is simple: “Obtaining oral communications, without permission, violates our laws. We must continue to enjoy this legal protection and privacy rights,” Mitchell said.

To learn about the current laws regarding recording conversations, click on this link: http://www.rcfp.org/taping/   
For more information see www.la-familylaw.com


A writer’s guide: Copyright, Divorce Community Property in California

Intellectual property rights such as copyrights, patents and trademarks can be valuable assets which should not be overlooked in any divorce settlement.  This article will briefly look at copyrights and community property in California. In California the case of In Re Marriage of Worth[1] established that copyright should be treated as community property subject to equal division in a marital dissolution. In that case Susan and Frederick Worth agreed in a stipulated Judgment that she would be entitled to royalties from two trivia books he authored during the marriage. When Frederick Worth later filed a copyright infringement action against the Trivial Pursuit board game, Susan claimed that she should be entitled to half the proceeds of the infringement action. The Court agreed with Susan and rejected Frederick’s arguments that State community property law was preempted by Federal copyright law. Although the decision has been heavily criticized by scholars and by other courts, it remains the law in California.[2]

            This means that when a marriage ends it is important to identify any copyright that either spouse holds, to place a value on that copyright and to make adequate provision for its division. This is especially important for copyright works such as literary and music creations which can be licensed and generate future income. For example, consider an author who writes a series of books featuring a famous cartoon character. While the non-author spouse is entitled to fifty percent of the copyright in the books written during the marriage, what is the situation where the author continues to write new books after the marriage using the same cartoon character? The post divorce books might then be turned into television shows and movies generating further income. In this kind of situation, in creating a settlement your attorney will need to distinguish and value the various forms of intellectual property that are created during the marriage. These will include the copyrights in the books and the character, good will developed by the author and trademark rights created in the character and the series. It is likely that these values will depreciate over time due to post divorce services performed by the author.  This was the situation in the divorce of Charles M. Schulz, the creator of the comic strip “Peanuts”. His wife of 24 years reached a property settlement whereby he agreed to pay for a share of the revenues he received from the comic strip after the divorce that would decline from 27% to 15% over ten years to take into account the fact that over time an increasing percentage of revenues would be attributable to his personal efforts.

            It is important to distinguish between the physical work and the underlying copyright in the work.  For example, in the case of an artist, the community will be entitled to the market value of any unsold paintings in a divorce but if the painter is famous there may be value to the other reproduction and merchandising rights in the paintings. Even where the copyright has been sold, there may be valuable residual rights that should be considered. For example, a novelist even after selling a book to a publisher may retain movie rights and even when the movie rights are sold may be entitled to “reserved rights” such as stage and performance rights. Screenwriters who are subject to the Writers Guild of America (WGA) Theatrical and Television Basic Agreement may not be the primary owner of the copyright in their scripts which are deemed “works for hire” and are owned by the studio or production company. However, the writer may be still be entitled to “separate rights” which can include stage, publication, series and sequel rights depending on the terms of the writers negotiated contract. Given the complexity of characterizing and valuation issues, in many cases it is a good idea to retain an experienced entertainment lawyer and accountant.

            The first step in a divorce is to identify the nature of the intellectual property rights that may exist. A search of the U.S. Copyright Office will determine whether the copyright has been registered in the U.S. However, copyright registration is not a requirement for copyright protection and will not reveal works that have not yet been published or exploited or foreign works.  For example, a half written book or a story outline is not likely to be registered but may still have value. Informal or formal discovery methods can be used to discover copyrighted works from the creator spouse or interested third parties such as book or music publishers, agents, business or personal managers and accountants. In some cases, it might be advisable to join them in the marital proceeding. In the case of a T.V. writer you would want to examine all contracts and royalty statements. In California, section 2100 et seq. of the Family Code requires both spouses to make a “full and accurate disclosure” of all separate and community assets and liabilities and to supplement those disclosures through the proceeding. Failure to do so may result in sanctions against the non-disclosing spouse and in extreme situations an award of those non-disclosed assets to the innocent spouse.

            Once you have identified community copyright there are various methods for distribution. With copyright, the cleanest method is for one of the spouses to buy out the other’s copyrights interests although this can present valuation problems. Value is often speculative especially with the development of new technologies which can take many years to add value to old properties. Another solution is to equally divide both the ownership and control of the copyright assets. Often this will be problematic since it may impair the creator’s ability to commercially exploit the work. By analogy, in dealing with the division of the family business where one spouse has been responsible for management, it would be rare to give the other spouse a say in management. That leaves the other solution which divides ownership –that is the legal title and right to revenues- between the spouses but leaves control of the copyright to the creator spouse. This can create problems since it gives the creator spouse the ability to structure deals in such a way that disadvantages the other spouse. Consider the case of Jerry Lewis and Patti Lewis who divorced after 35 years.  In the divorce, Patti reached a settlement under which she was entitled to a one half interest in royalties from “Community Titles” over which Jerry retained control. This included the Nutty Professor which was remade by Universal with Eddie Murphy. In a subsequent lawsuit, Patti alleged that Jerry structured the deal with Universal is such a way that minimized the “remake rights” (to which she was entitled to 50%) but paid him substantial personal service fees as writer and producer (which did not). If you do decide to separate ownership and control of the copyright it is important to negotiate how the managing ex-spouse will administer the asset, including defending the copyright and bringing infringement claims, and what fiduciary duties will be owed to the other spouse.  Also there should be provision for a buy-out in certain circumstances e.g. an ex-spouse dies or no longer has the ability to manage or either party wishes to sell.

            Whatever method of division of copyright is determined it is important that all the copyright formalities for transfer are observed. Your attorney should pay particular attention to the Copyright Act’s provisions regarding termination of transfers, reversions and renewals. Any transfers or assignments should be in writing and it is wise to register the copyright transfer or assignment at the Copyright Office. [3]

[1] 195 Cal App. 3d 768

[2] See Nimmer “Copyright Ownership by the Marital Community: Evaluating Worth” 36UCLA Rev. 383 (1988); Rodrigue v. Rodrigue, 39 USPQ2d 1157( E.D. La. 1996)

[3] Registration is often a condition for bringing an infringement action and attorney fees.

Effect Of Recession on Divorce rates

From Time magazine

Thursday, Oct. 23, 2008

Will the Market Kill Your Marriage?

Recession and divorce, it is said, go together like carriage and horse. Those who labor in Splitsville have several explanations for why that might be. There's the lawyer theory, that money provides the soft fatty tissue that insulates the marital skeleton; once it's cut back and people get a good look at the guts of their relationship, they want out. And there's the marriage-counselor theory, that couples who were never quite on the same page in the checkbook finally get pushed off the ledger by endless bickering over their dwindling resources. And the therapist theory, that financial worries cause stress, stress can cause depression, and depression is a total connubial buzz kill.

"Recessions tend to raise divorce rates," says Nobel laureate and University of Chicago Graduate School of Business economist Gary Becker. "But you won't see a pandemic." Census Bureau figures show that over the past 2 1/2 decades, recessions have had only minor effects on divorce rates, which have been slowly waning since the early '80s after 20 years of steadily rising. Those trajectories have been influenced more by the rise of the women's movement and women's earning power, lower fertility and changes in divorce laws than by dour Dows. The only recorded spike in divorces in the past 75 years came right after World War II.

But the trend lines could change, Becker says, depending on the depth of this recession, striking as it does squarely at people's homes. With the financial baggage that many matrimonial vessels are hauling, it's not yet clear whether more spouses will jump ship or start bailing. What is clear is that everybody involved--from the ultra-wealthy to the completely broke, from family-court judges to therapists--has to figure out a new way to navigate.

The Rich, Who Are Different

Steven Eisman helps dissolve the unions of mostly wealthy clients in Nassau County, N.Y. In the traditional thinking about the recession-led split, non--wage earners "who were willing to stay in a less-than-perfect relationship become less willing once the credit cards are taken away," he says. But recently some lawyers have noticed that as stock prices have plunged, they've gotten inquiries from business owners and investors looking to unhitch now, with the idea that being poorer on paper will work to their advantage when dividing assets.

"In most states, the value of a business is part of the matrimonial pot of money that has to be divided up. Often, assets are set at the time of separation," says Neil Stein, partner at Stein & Glazer in Philadelphia. "I've had several clients come to me recently and say, 'I've wanted to get divorced for years but didn't want to give up half of my business. Now that my business is not worth anything, wouldn't it be a good time to do it?'" Conversely, some nonearning spouses of the very wealthy are also trying to game the nuptial market, attempting to lock in a higher rate in case the economy travels further south.

Sumner Redstone filed for divorce on Oct. 17, when his more than 16 million Viacom shares were at $18.85, down from $39.40 six months ago; his CBS shares had dropped about $288 million in value in the same period. Redstone and his wife Paula reportedly have a prenuptial agreement, so it's unlikely the market has much to do with timing, but Mrs. Redstone divorces a poorer man than she would have six weeks ago.

The Stuck-at-Homes

Among the nonwealthy, the two assets that typically need to be divided are 401(k)s and the family residence. But suddenly 401(k)s aren't worth as much, and that home whose mortgage was the mother of all argument starters is not an asset at all. It can't be sold--or at least not for a price that provides money to start over.

Instead of working out who owns what, lawyers and mediators are trying to figure out the fiendishly trickier conundrum of who owes what. "We're negotiating debts--not assets," says Henry Gornbein, a family-law attorney in Oakland County, Mich. "Two, three years ago, I'd be telling you that houses had equity, and you'd either be doing a buying out or selling the house and splitting whatever the proceeds were. Now it's the reverse. You go into court; the judges just don't know what to do."

In the face of this, some couples are attempting to tough it out. "The divorce rate is down in Michigan," says Gornbein. "People have no choice sometimes now except to return to the marriage." Others are choosing to separate or divorce but live together until either the house sells or they go stark raving barmy and will sign anything. A Boston lawyer tells of a woman who had a restraining order against her husband but was forced by economic circumstance to let him move back in. (Eventually they reconciled.)

The ex-as-roommate phenomenon is common enough that Virginia already has case law that governs what couples who are separated but living under the same roof may and may not do if they want the separation to lead to a divorce. Sex is definitely out, as is doing each other's laundry, shopping or cooking for each other and going on a date. Virginia, clearly, is not for ex-lovers.

The Teeterers

And then there are the couples who are contemplating divorce because of the strain the poor economy is putting on their poor marriage but think it's because of something else. John Coates, a Deutsche Bank trader turned Cambridge University researcher, measured the naturally occurring steroids in 17 British male traders over time and found high levels of testosterone during bull markets and of cortisol during volatility. Cortisol helps the body deal with threatening situations. But prolonged exposure to it, as during a lengthy downturn, makes people irrationally fearful, so when confronted with neutral situations--say, that their spouse would like the leaves raked--they react as if threatened. In other words, men can get funny when they're losing money. Even those who aren't traders.

Which brings us to cheating. Since no one has yet figured out how to do a National Infidelity Survey, it's hard to track, but experts warn it becomes more likely under stress. "Study after study shows that men deal with stress through escapism and women deal with it by talking," says Jill Brooke, a divorce expert who helps run Firstwivesworld.com "Online porn, massage parlors and escort services are cheaper and quicker than therapy, especially if you lost your health insurance." Often, since the men are operating under stress, they get caught. And often their wives can't bring themselves to take the Silda Spitzer--Elizabeth Edwards high road.

Apart from the ready access to high-speed online porn, what makes this recession different from others is that it's centered on real estate and thus on people's homes, which may explain why women are feeling more anxious about it than men are. In a survey released in October by the American Psychological Association (APA), more women than men reported feeling stress about money (83% vs. 78%) and the economy (84% vs. 75%). And women were more likely than men to say they had symptoms of stress--including irritability and weariness. Plus, their stress levels had risen more sharply over the past six months than men's. So it's harder for women to take up their traditional role as household comforter and easier for the wheels to fall off the whole enterprise.

There is some good news. A study that correlated Playboy centerfolds with market conditions found that men like fuller-figured women more in lean times than in boom times. The APA study showed that when stressed, women liked to eat. Bingo!

But aside from stress-eating, is there anything to be done if you'd rather the market didn't take your marriage down with it? A lot of counselors suggest sitting with your spouse and putting your fears on the table. If partner A does not know the full lay of the dire financial land, partner B should map it out while partner A makes a robust attempt not to scream. Then figure out how to address your liquidity issues as a team. All this honesty might even work as foreplay, suggests New Jersey sex therapist Sandra Leiblum, but if not, she recommends putting down the BlackBerry and reminding your spouse of something that's "free, burns calories, releases tension and creates bonds." Bonds that, luckily, can't be traded.

With reporting by Lina Lofaro