The Limits of “Self-Determination”

I recently worked with a couple who wanted a divorce as soon as possible. Unfortunately, the wife was not working, had no means of supporting herself, was attempting to obtain disability benefits and the husband did not have sufficient income to pay her support and still meet his other obligations. So what happened?

Let me start by saying I am all about self-determination. I believe people should be free to do whatever they feel is in their individual best interest. And this means a wife who is unable to support herself should be able to leave her husband and waive any claim to support if that is what she wishes to do. However, there are two problems here.

The first problem is that I believe it is unlikely that a judge is going to sign a divorce decree that incorporates an agreement that does not demonstrate that each spouse is capable of supporting him or herself.

In fact, General Obligations Law 5-311 forbids an agreement which would render a spouse a “public charge”. That means collecting public assistance.

The second concern is my own issue with being a part of an agreement that I do not believe has been thoughtfully considered. As an attorney and mediator I am ethically able to draft legal documents for couples who have reached an agreement after a successful mediation. However, this does not mean that I will participate in drafting an agreement that I cannot support.

So, what did I do?

I offered to prepare the property settlement portion of their agreement and left the maintenance provisions out. This allowed them to live separately, stopped the accumulation of marital property and debt, and made them each feel more comfortable with the decision to live separately. I did this with the consent of my clients and offered to help them obtain a divorce once the wife could demonstrate the ability to support herself. Sometimes all self-determination takes is the willingness to find a solution that helps you obtain part of the result you want now and the rest later!

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