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Here is where NADP members that are within the Legal category can share their knowledge and expertise regarding their profession as it pertains to the divorce process.

 

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Top tags: Denise Tamir  Divorce  Mediation  Cryopreserved Embryos  Gray Divorce  Huma Abedin and Anthony Weiner  Trending 

What Happens to Cryopreserved Embryos During Divorce Proceedings?

Posted By Liz Becker, Tuesday, December 19, 2017
Updated: Tuesday, December 19, 2017

What Happens to Cryopreserved Embryos During Divorce Proceedings?

By Leslie Schreiber, P.A

 

Embryos. Divorce. These two seemingly disparate words are increasingly connected in light of escalating infertility rates worldwide. As professionals involved in matrimonial/divorce practice, you may be asked to resolve or mediate disputes arising from the disposition of frozen embryos.[1]

This dilemma over the disposition of embryos has become more common due to the reliance on fertility treatments to assist in family creation. A typical scenario involves a married couple utilizing IVF and in so doing, find themselves with extra embryos as a result of that procedure. If the couple decides to cryopreserve those embryos, they are asked to sign a storage consent agreement. Therein lies the problem. Sometimes the parties’ objectives are unclear because the documents evidencing their intent have been poorly written or perhaps conflict with other documents. Perhaps one of the parties has had a change of heart. Whatever the source of the conflict, emotionally charged litigation may result.[2]

 

There are currently no federal regulations governing the disposition of embryos, leaving states to their own devices. Analysis of case law nationwide reveals a variety of methods used by courts to resolve these issues.

While the circumstances of each case are unique—as reflected in the divergent results—three approaches by the courts are common. First, courts will examine relevant documents to determine whether or not a contract exists. Typically, clinics provide an embryo disposition document allowing the intended parents to decide what to do with extra embryos.[3] A well-drafted document will reserve dispositional authority to the progenitors.[4]

 

An embryo storage agreement may also exist that should provide instruction as well. Sometimes storage agreements conflict with a clinic's dispositional document. A review of decisions shows that the majority of cases will honor the intent of the parties as evidenced in dispositional agreements before courts look to a balancing of interests.

Next, if the documents lack clarity, the courts will balance the parties’ interests. Does one party's interest in having another child outweigh the other party's constitutional right not to be a parent? Is there a medical reason in play? How does that state view the legal status of the embryo? Is it considered property or does it rise to the status of a person? Finally, the courts may determine whether or not there is contemporaneous mutual consent between the parties.

 

Divorce professionals can circumvent potential problems by establishing a fact-finding system such as a query about cryopreserved embryos as part of the client intake questionnaire. If the client answers in the affirmative and there is a subsequent ownership or usage dispute, then the attorney will have to step lightly into this highly contentious and sensitive arena. Partnering with a reproductive attorney well-versed in these issues is advisable.

 


[1] Frozen—or cryopreserved—embryos result from the combination of a human egg and human sperm via in vitro fertilization. Instead of being transferred to a woman's uterus, they are frozen with liquid nitrogen and placed in a storage facility.

[2] According to Bette Galen, a Florida based MSW, LCSW:

Most couples do not enter marriage thinking about…divorce. If they have used medical intervention to create embryos, they have been counselled about disposition opportunities and have…consented. When couples are in the midst of treatment, it's often hard for them to fully understand the magnitude of this decision…. Fast-forward to a contentious emotional divorce: this can be compounded by each partner's demand to protect their DNA. For heterosexual couples, the female partner may feel it's the last chance to have a genetic child, while the male may want the embryo(s) destroyed. When the lawyers enter the equation, emotions escalate and they are forced to face this multi-layered decision.

 

[3] Options may include immediate thaw and disposal, donation to science, cryopreservation storage, donation to a clinic's embryo donation program, or storage for future use designated to a particular person.

[4] Note that in some instances, couples will cede that right to the courts.

 

 

This article was written by NADP member Leslie Schreiber, P.A of the Law Offices of Leslie Schreiber.  786-671-7707

Tags:  Cryopreserved Embryos  divorce 

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Why Huma Abedin and Anthony Weiner Should Mediate

Posted By Denise Tamir, Tuesday, September 27, 2016

OK, I confess, I have been entertained by the ups and downs of the Anthony Weiner - Huma Abedin marriage since the first Weinergate erupted with salacious details of a Sexting scandal and a man who can't seem to keep it in his pants.  A story with politics, power, infidelity, and an addiction to sexually deviant behavior; you really can't make this stuff up!  But the thought of the couple's five year old son laying next to his father as he snapped his latest indiscretion cured me of my tabloid appetite and reminded me of why I chose to be a family mediator.


Yes, it's the political season and everything seems tainted by the lens of a Presidential election unlike any we've seen before.  It was predictable that Abedin's close relationship to one candidate would be exploited by the other one.  But is there any place for the personal marital struggles of a candidate's advisor in the political fray?  If you believe there is, does it change your opinion once you consider the collateral damage; a five year old who will be exposed to his parents' public marital woes, if not now, at some point in the future? That's why I believe the wisest thing Weiner and Abedin can do, for themselves and for their son, is mediate the divorce as quickly as possible.  


I now mediate family cases full time because I was so frustrated with the damage litigated divorces cause families.  The destructive nature of adversarial litigation works fine when the parties don't have to deal with each other after the case is over; like a car accident or a breach of contract.  In family cases involving children, however, the parents are stuck with each other long after the judge and lawyers have gone home.  It's insanity that most family cases today are still resolved in a system designed to make enemies of the parties, after which they are expected to miraculously get along well enough to co-parent their children without causing irreparable damage. I mediate in order to help couples through the process in an atmosphere of mutual respect and dignity so that they can co-parent effectively after the divorce final.   

Though mediation preserves the relationship between the parties and saves a lot of time and money, the most important benefit for Weiner and Abedin is confidentiality.  From the parties' fault to their financials, a litigated divorce is public record. Based on what we have heard so far, there are probably embarrassing details better left out of the public eye. If Weiner and Abedin mediate, the only information the public will have is what the parties both agree to disclose.  Though mediation would deprive the networks of one of the sexiest political scandals to come along in decades, I hope Weiner and Abedin chose mediation instead of litigation to protect their privacy, and the privacy of their five year old son.

 

Denise Tamir is a Family Mediator and President of The Divorce Mediation Center of South Florida. At DMC we guide couples through the confusing and emotionally charged divorce process in an atmosphere of mutual respect and dignity.  

Denise can be reached at 786-236-6281 or dtamir@thefairdivorce.com. 

Visit our website www.thefairdivorce.com.

 

Tags:  Denise Tamir  Divorce  Huma Abedin and Anthony Weiner  Mediation  Trending 

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The Gray Divorce

Posted By Denise Tamir, Tuesday, September 27, 2016

Is it just me - or does anyone else feel like everyone they know is either divorced, in the process of divorcing, or contemplating divorce?  Now empty nesters, my husband and I scratch our heads in dismay as we watch couples we have known for decades decide they have little in common once their children leave home.  Instead of looking for ways to reconnect and find new common interests to replace the parental responsibilities that have all but disappeared, they decide they would prefer to chart the next phase of their lives solo.  It has become our new sad guessing game at dinner:  "guess who's getting divorced?"

 

This trend isn't limited to my circle of friends, or even South Florida.  Sadly, the divorce rate among couples over 50 has skyrocketed from one in ten couples in 1990 to one in four today.  Interestingly, two thirds of the time it is the wife asking for the "gray divorce." Many sociologists are trying to explain why middle aged women are heading for the marriage exit and they have come up with several interesting hypothesis.

 

Though the fact that divorce has become more common and less of a stigma has some impact, that does not explain why the gray divorce rate is climbing while the general divorce rate is going down.  One factor is the entrance of women into the workforce decades ago. As women became more financially independent, they felt less trapped in a marriage for financial reasons.  Women can now support themselves and chose to do so when they are unhappy in the marriage.   Another factor is that people are living longer.  When a woman realizes she is unhappy at . . .say 50,  she contemplates three or more decades of unhappiness and often decides being alone is preferable. 

 

Susan Brown, Co--Director of the National Center for Family and Marriage Research at Bowling Green State University and author of "The Gray Divorce Revolution," also raises an important sociologic factor; a change in the way society views marriage as an institution. In the 1950s and 1960s, marriage was "role orientated." As long as the spouses fulfilled their roles as provider or homemaker, the marriage was considered successful.  Personal happiness was less important.  Today, couples focus on fulfillment rather than roles and are more concerned with what they get out of the marriage than what they put in. 

 

Another factor Brown points to is the complex marital histories of the spouses.  Most people divorcing after 50 are in their second marriage and having been married before statistically doubles the risk that the second marriage will also end in divorce.

 

Whatever the cause of this increase, gray divorcing couples have very different issues to grapple with than their younger counterparts.  First, they will be dividing their assets to support two households at a time when they should be planning for retirement.  They are close to, or already in, the phase when they are no longer producing and acquiring assets, and must plan to support themselves from what they have acquired.  Sustaining two households from a fixed income is often more difficult than the couple expects.

The disruption in family relationships is also different.  Though gray divorcing couples usually do not have to redesign the day to day logistics of co-parenting minor children, the impact on adult children is no less profound.  They must think in terms of co-grand parenting and attending family functions like children's weddings harmoniously.  Also, even though they usually do not have legal child support obligations, many older couples provide financial support to their adult children or grandchildren, which will be reevaluated now that they must sustain two households.   

 

On the positive side, couples who divorce later in life are often more rational and less angry than their younger counterparts.  They understand the value of time and money, and choose not to squander either on a protracted court battle. They are, therefore, more likely to seek methods that will preserve the good memories of the years they spent together with dignity, like mediation.

 

Though mediation may occur at any time during the divorce process, pre suit (before the lawsuit is filed) pro-se (without attorneys) mediation provides the greatest benefits. A neutral and impartial mediator facilitates a discussion between the husband and wife to help them identify the issues they need to resolve and help them decide for themselves how best to resolve them.  In this way, the couples reaches their own agreement before the lawsuit is filed, rather than waiting for a judge to impose an agreement on them. At the final hearing, the judge incorporates the couple's agreement into the final order of divorce in a process that takes several weeks instead of months or years. 

 

Though most couples could benefit from pre-suit pro-se divorce, gray divorcing couples seem to be embracing this method in greater numbers. Perhaps because so many of them have already been through a litigated divorce, they, appreciate the benefits of mediation like saving time, money, and the relationship as well as privacy, creative problem solving, and self determination.  This trend validates the old saying "older and wiser;" though divorcees may be older, they seem to be making wiser choices in how they choose to handle their divorce.

Denise Tamir is a Florida Supreme Court Certified Circuit Civil and Family Mediator and President of The Divorce Mediation Center of South Florida, a group of caring professionals who guide couples through the confusing and emotionally charged divorce process in an atmosphere of mutual respect and dignity. 

 

Denise can be reached at The Divorce Mediation Center at (305) 542-4508 or dtamir@thefairdivorce.com.  Visit our website www.thefairdivorce.com.

 

Tags:  Denise Tamir  Gray Divorce  Mediation 

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