This Diamond Ring Doesn't Mean What It Did Before

In 1965 Gary Lewis and the Playboys released an album entitled “This Diamond Ring.” In the opening lines of the lead song Gary Lewis asks the musical question; “Who wants to buy this diamond ring? She took it off her finger now it doesn’t mean a thing… this diamond ring doesn’t mean what it did before.”

However, in the world of separation and divorce that diamond ring is often worth a great deal of money and people have fought epic battles over its possession. If the marriage never happens who gets the engagement ring? What happens when the marriage occurs but is short lived. How do we decide which party gets the ring? Is it the person who gave the ring or the person who wore it? Does “fault”, such as infidelity, cruelty or abandonment play any part in the determination? The answers to these questions depend upon where you live.

Let’s start with the question of who gets the ring if the marriage never takes place. For many years a number of states followed the rule that an engagement ring was a conditional gift made in contemplation of the marriage. If the parties mutually agreed not to marry the ring went back to the person who gave it to his intended bride. However, if the engagement came to an end because of the “fault” of one of the parties the person at fault forfeited the right to the ring. This construct put the judge in the middle of a messy, often acrimonious battle of who did what to whom, how often and why. The party at fault lost possession of the ring. This rule is still the law in some jurisdictions across the United States such as California, Illinois, Missouri and Texas.

Reacting to the distasteful and almost impossible task of deciding which of two warring parties was at fault or greater fault (are there not always two sides to a story?) other states have constructed a “no-fault” rule. Under this rule the first step is to determine whether the ring was clearly given in contemplation of marriage. No magic words are necessary and a bended knee is not an absolute requirement. Rather, the court looks at the total circumstances which surround the giving of the ring. In these states, the majority in our nation, if the ring was clearly given in anticipation of the marriage and the marriage does not take place, for whatever reason, the ring goes back to the person who gave it.

What happens when the person who was wearing the ring no longer has it? Suppose the distraught ex-fiancé throws it into the river or hocks it at a pawn shop.

A man in Alabama proposed to his live-in girlfriend on Christmas Eve, giving her a 2.5 carat diamond ring in a holiday gift bag. Fortunately for him he gave the gift bag to the woman while on one knee, proposing marriage. Months later, the woman called off the engagement. Initially the woman claimed that she had thrown the ring into a river. Later it was revealed that she had hocked the $32,000 ring for $10,000. According to her, the ring was a Christmas gift not an engagement ring. She also disputed the man’s story that he made a simultaneous proposal of marriage.

The court ultimately ruled that the ring was indeed a gift in contemplation of marriage and that the man was entitled to its return because no marriage ensued. Given her conduct in disposing of the ring he was then awarded damages in the amount of $32,000. Collecting this money may be a different story.

And so what happens when the ring is given prior to the marriage, the parties do marry and then divorce? Take the case of Kim Kardashian and Kris Humphries, ex-husband and ex-NBA basketball player. Prior to their marriage Kris had given Kim an eye-popping 20 carat engagement ring which he purchased for $2 million dollars. When the relationship cratered a mere 72 days after the wedding Kris asked for a return of the ring. Now what?

Since the marriage had taken place the ring was no longer a conditional gift. Under New York Law the ring would have been Kim’s since it was given to her prior to the marriage and therefore her separate property. However, their divorce took place in California where the law is different. In the negotiation between the divorce attorneys Kris got the ring back and sold it at auction for approximately $620,000, after paying off the costs of the auction. Another “L” in the win-loss column!

Every Move You Make, I'll Be Watching You

One of the biggest musical hits in the US and the UK was the Grammy winning song “Every Breath You Take", written by Sting and performed by the rock band The Police. For better or for worse it could easily be the anthem of the current world of divorce, where spouses are constantly spying on each other. As Sting reminds us “every move you make, every vow you break… I’ll be watching you.”

How prevalent is spying in the context of divorce? Based upon everything I have seen in my divorce practice, spousal spying is not only becoming more commonplace but also more sophisticated.

For many years “surveillance”consisted of hiring a private investigator to follow and, if possible, photograph your spouse in compromising situations. The primary purpose of such investigations was to establish grounds for divorce such as adultery or cruelty.

However, the days of the private eye lurking around the “love nest” of your cheating spouse have been replaced by sophisticated devices and apps which cost a fraction of the PI bill and are far more effective. Additionally, the purpose of the spying has grown to include financial discovery, the location of hidden assets and to secure evidence relating to custody of the children.

The major caveat here is that many of these devices and techniques are illegal under federal and state law, which not only results in suppression of the illegally obtained evidence in the divorce case but also opens up the spying spouse to criminal prosecution. Thus, it is absolutely critical for spouses to consult with an attorney in their state or country before engaging in such activity.

For example, the photo lens has been replaced by telephone taps and voice activated tape recording devices. Clearly such techniques are illegal in most jurisdictions in the US. Similarly downloading a keystroke program onto your spouse’s computer – a program which can be purchased online for about $49.00 - will allow you to virtually see everything written by him or her on the computer. The use of such sites and apps is also illegal in most jurisdictions. Similarly, downloading apps on your spouse’s smartphone with the capability to listen in on conversations or record them is also a big No-No. As are GPS trackers.

Of course, there is the use of “nanny cams” or other “hidden cameras” to catch your spouse in compromising situations. Recently, a woman shared on Tik Tok that she set up a camera in her home because she believed that her husband was cheating on her. What the hidden camera captured was her husband fooling around with the wife’s best friend, who had been invited to stay at the couple’s home by the wife as a temporary measure. The wife shared the cheating video and the subsequent one where she confronted the wayward husband and her friend (including the fisticuffs which ensued) on Tik Tok. The videos have over 9.1 million views and 1.1 million likes. Let’s hope that the next video is not the wife going off to prison for the felony of illegal eavesdropping.

Some states such as Pennsylvania, Connecticut, Washington, Florida, Illinois, Maryland Massachusetts, New Hampshire, California, Montana, Michigan and Nevada have said that the use of hidden cameras is illegal without the consent of the person recorded. Less clear is whether such laws apply to divorcing spouses who secretly record their mates inside the marital home. However, an Iowa court recently found that a man had violated his wife’s privacy by videotaping her with a camera surreptitiously installed in an alarm clock in her bedroom in their home.

As noted above, this entire area is a minefield for divorcing spouses. While the spying techniques described above were previously employed to uncover infidelity and to establish grounds for divorce, people are now expanding the purposes of the spying activity to deal with other aspects of their divorce case. This will be the subject of future articles.

As a final note it bears repeating, that spouses need to solicit advice from an experienced matrimonial attorney before engaging in such behavior. Moreover, clients should note that revealing or turning over such illegally gathered evidence to your divorce attorney may put him or her into an ethical bind with respect to the handling of your case. Caveat Client!

50 Ways to Leave Your Lover

In one of his catchy singles, singer and songwriter Paul Simon famously crooned that there must be “50 ways to leave your lover.” Based on my many years as a divorce attorney I must respectfully disagree. I have come to the conclusion that there are an endless number of ways to show or tell your lover you are done with the relationship. However, Paul’s list is a good starting point. Let’s look at some of the ways suggested by him.

Just slip out the back, Jack

Some people lack the courage to directly tell their lovers or spouses that they want a divorce. Instead they find ingenous ways to avoid that difficult or painful conversation. Or they have someone else break the news for them.

Many broken-hearted people come into my office clutching a letter they received from a divorce attorney hired by their husband or wife. The generic form letter says, in sum and substance, that they have been retained by your spouse and you should go get a divorce attorney as well. Of course there is the implied threat. The letter ends with “we want to work this out in a most amicable way and will give you a reasonable opportunity to locate such an attorney. However, if we do not hear from such a person within 10 days we will have no other choice but to commence a litigation.”

Invariably, the person sitting across from me says the letter “blind-sided” them or “came out of nowhere.” A recent example of this is the case of billionaire John Paulson and his wife of twenty one years Jenny Paulson. Close confidantes of Jenny say she found out that John had filed for divorce in Suffolk County, New York by reading about it in the gossip column of the New York Post. According to reports, Jenny had no idea that John was planning to file for divorce – “she never saw it coming” – a version of the facts disputed by kkJohn and his representatives.

Just make a new plan, Stan

Some people in life are forward thinking and extremely detail oriented. These are the kind of people who approach every endeavor, including divorce, from the perspective of a stategic, well conceived and thorough plan of attack. Many spouses come to a consultation with me saying that their spouse “does not know that I am here.” These people also tell me that “they are not sure that they want a divorce but just want to know what would happen if there was one.”

What they are really saying is that they are absolutely sure they want a divorce but first they want to find out how much it is going to cost and how they can best “protect” or worse “hide” assets or income from their soon to be discarded spouse. Inevitably, these people plot and plan behind the scenes, setting up their financial plan (e.g. new separate bank accounts, lower limits on credit cards, new wills and life insurance beneficiary changes), as well as securing a new place to live (perhaps the home or apartment of “a good friend” or a place nearby) and hiring an attorney to represent them in the now meticulously planned divorce case.

No Need to be Coy, Roy

Of course there are those people who are total narcissists and have no difficulty being blunt, if not cruel, to their lovers on the way out the door. A woman recently shared on Tik Tok a series of videos in which she explained that shortly after she began dating her boyfriend she found out that he had a chronic kidney disease that was life threatening. The woman volunteered to be tested and when found to be a match went through with an intensive surgery to donate one of her kidneys to him. Everything went very well with the surgeries and both recovered from the operations. You know what’s coming, don’t you?

Instead of being eternally grateful, the man then cheated on his life-saving girlfriend when he attended a bachelor party. She even forgave him for his infidelity. However, three months later he called her to tell her the relationship was over. When she tearfully described how she had even given him a kidney, his retort was “you only donated your kidney to look good.” Tik Tok exploded with vitriolic comments about this insensitive cad.

No Need to Discuss, Much

Apart from the “break up” telephone call, a text message sometimes will suffice. In a recent survey of 500 millennials, 57% say they have broken up with someone via a text message and 69% say they have been on the receiving end of such a message before.

This trend is not limited to millennials, as experienced by the aging singer/entertainer Phil Collins. His on-again-off-again wife, Orianne Collins, once told Phil they were through via a text message. What was different about this? They were both in the house together when she sent the text to him. Talk about impersonal.u

Just Drop off the Key, Lee

While some departing lovers do in fact leave the key on the entrance table as they walk out of the house, the much more common scenario is where the key no longer works because the locks have been changed – a not so subtle clue that the relationship is over. In an article which appeared in the UK based newspaper The Sun, a woman found out that her boyfriend was cheating on her right before Christmas. The woman made a video of herself throwing all of his clothes and shoes out of the house, captioned “Thanks for cheating on me before I bought your Christmas presents.” Once the clothes were safely outside in the shrubbery, changing the locks on the door was the next step. As I said, there must be “a thousand ways to leave your lover.”