EPTcalling all TL lawyers: divorce law - Page 3
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Brett
Australia3822 Posts
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Nyovne
Netherlands19137 Posts
But yeah it would have alot of the same problems but since criminal charges are between the state and the offender there is no issue of the victim profitting so that removes the biggest problem. The next is if it is actually desireable to prosecute on these bases as it will set a really really nasty precedent and will make organ donation an even riskier business as it is allready and will discourage even more people from doing it. Hence it will probably not be tried or if so it will most likely result in a dismissal as any conviction would do more harm the letting these few dubious cases get away. Justice has to be served but as judge one must always keep in mind the greater good as well and individual justice can suffer from that at times to prevent many others from suffering where it would be injustified. This is mostly a problem in caselaw countries though, in civillaw countries such as continental europe I could easily see this as being tried before a criminal court and in case of a conviction see a following civil suit where a reparation for damages and expences could be tried. Would be a very interesting case in my opinion, however it would require alot more malintent then there is displayed in this case. There was a period of 4 years between the donation and the file for divorce so it seems pretty obvious (at least from the little information that the article provides us with) that there is no link between her marrying him for an organ donation or postponing a divorce to secure her husband wellwillingness to donate his kidney. This just seems to be a hard knock life for the husband. | ||
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Brett
Australia3822 Posts
It was a kidney transplant for crying out loud. What is the deception? That she didn't actually need the kidney? Or do you actually intend to allege that she created the relationship to induce his donation. Oh god the evidentiary issues... What's the injury? The surgery and removal of the organ? Lawful excuse. If you're going to draw a bow that long you may as well charge the surgeons for being complicit in the crime. They aided the procurement of the organ!! Doesn't that sound completely ridiculous and improbable? Yes. And so is a criminal charge against the woman. You even state further public interest grounds for why State authorities wouldn't pursue such charges in your above post. It's the sum of all these factors that make it a long bow to draw. | ||
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Nyovne
Netherlands19137 Posts
On January 14 2009 06:54 Brett wrote: What are you going to charge her with? Obtaining 'property' by deception? Without lawful excuse causing serious injury? It was a kidney transplant for crying out loud. What is the deception? That she didn't actually need the kidney? Or do you actually intend to allege that she created the relationship to induce his donation. Oh god the evidentiary issues... What's the injury? The surgery and removal of the organ? Lawful excuse. If you're going to draw a bow that long you may as well charge the surgeons for being complicit in the crime. They aided the procurement of the organ!! Doesn't that sound completely ridiculous and improbable? Yes. And so is a criminal charge against the woman. You even state further public interest grounds for why State authorities wouldn't pursue such charges in your above post. It's the sum of all these factors that make it a long bow to draw. Kidneys aren't property to start with and yeah I obviously ment (and explicitly stated) the scenarios where she started a relationship to induce his donation which I'm absolutely 100% sure about that I could make a case for it and a good one to boot. There's so much legal basis for it on both sides of the pond. The verdict is going to be another matter alltogether plus the fact that getting evidence is almost impossible but those are another matter. I was just talking about actually making a case and getting a trial started. And I don't possibly see how you can't clasify the unwanted removal of an organ as something other then resulting in severe injury. If she goaded him into it under false pretenses there is a lack of compatible wills hence the unwanted. Barring the evidence required which is really hard to aquire if not impossible (but so can be proving murderous intent) and the fact that the verdict will have big repercussions (esp in a commonlaw state) , I'm 100% sure I can build a good case for a husband who got goaded into donating a kidney soon after getting married and then got immediately divorced. If it's in the case of a longer lasting relationship (say 10 years or more just to be on the safe side) and he donates and then she immediately divorces him it already gets alot trickier but even there the basis would be the same, the evidence would just even be harder to procure. I'm not saying this is right or it should be (actually I think it is, esp in the first marry to goad into donation case), I'm just saying that there is valid reasoning possible to build this into a case but the circumstances would have to be exceptional (and obvious most of all). Pus again the main reason I would see this as the only result of getting satisfaction for "the victim" is as a civil suit is pretty much barred from his options as its impossible to value certain things or even illegal to do so let alone the fact that he might financially profit. Where this is impossible in a criminal suit because he is not even party to the proceedings State vs Purpetrator (sp?). | ||
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Nyovne
Netherlands19137 Posts
If you can prove all that I'm 100% sure you can get her convicted for causing serious injury without lawful excuse because she pulled the wool over his eyes (the fact that the guy is a total too trusting madly in love retard doesn't matter or even makes it worse for her case) to donate his kidney to her. If he states that he wouldn't have donated his kidney if he was aware of all the facts and her intentions (something no judge or jury would doubt I'm sure) then there is no lawful excuse. It's plain old deception to gain compliance to engage in an act which results in severe bodily harm. It's very very very exceptional circumstances sure, and the evidence is really hard to aquire. Plus the fact what the verdict would turn out to be, but I'm sure theres a good case in there  . | ||
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AttackZerg
United States7474 Posts
Lawyer perhaps? | ||
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Brett
Australia3822 Posts
In any event my comment was: That's an incredibly long bow to draw. And you've just agreed that it would be very very very exceptional circumstances. I'm not exactly sure that we disagree here! Almost everything in law is arguable, however unrealistic many of those arguments are... | ||
Smurg
Australia3818 Posts
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Nyovne
Netherlands19137 Posts
And thanks for the praise attackzerg but im no lawyer (perhaps later in life), atm Im graduated in Healthlaw and now doing my 2nd masters in Trade and Corporate law, with specialisations in intellectual propertylaw and aiming at a Intellectual property/Patent specialisation PostMaster in a month or 18 from now . Hope that all works out ;p. | ||
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Number41
United States130 Posts
For the reasons stated by Nyvonne and others the demand will fail because U.S. law prohibits the transfer of organs for "valuable consideration." Me give money for organ? Illegal. NY judge order me give money for organ? Still Illegal. Dr. Batista has stated the reason he made the demand was to bring attention to the allegation that his wife was not allowing him proper visitation with his children. I suspect the demand was made to influence the judge deciding the ongoing divorce settlement between the two. New York is not a "community property" state. (Community property law divides marital property 50 / 50.) My understanding of New York law is that a concept of "equitable distribution" applies to create a "fair" settlement. The judge has a tremendous amount of leeway. In this case, the doctor, I would guess, has more non-marital property and greater income potential than his spouse. Typically a judge might be inclined to award the spouse a greater share of the marital property based on this information, but the judge can consider many other factors. I am guessing that this was a clever stunt to put the idea in the judge's head that the spouse is $1.5 million wealthier now that she has a working kidney, and the judge should deduct that or some other reasonable amount from the spouse's total award in the final judgement. | ||
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Megan Thompson
United States1 Post
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srislawyer
1 Post
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BisuDagger
Bisutopia19307 Posts
This is a very brief overview of what a woman is doing to my friend. Her actions are far worse then described below: I've got a friend (a father of two young kids) who has been trying to get divorced for 3 years now. His wife was the one who served him with the divorce. In the time since she served papers, she has had a child a with man who is a convicted felon for drugs and domestic violence against two other baby mamas. (This guy allegedly beat her and threatened to kill the entire family, but she dropped those charges against this man). Her actions have gotten so bad, until the divorce goes through she is only allowed to see her two original kids on weekends. She has: * Called DCF on my friend at least a dozen times including officer involved visits. All provable fake claims. My friend has a camera in every room of his house now to record everything * Made fake assault claims to the police and then called his school principal which got him put on paid leave until the police proved her claims were invalid * Had 4 different lawyers removed themselves from representing her because of her constant lying to them She also has gotten the divorce court date pushed back 4 times because of either changes in lawyers or submitting evidence for fake claims the day before trail only to remove them after the court date is changed. This is because she knows she will lose full custody to her soon to be ex-husband. At this rate it will probably take 4 years for him to successfully free himself of this torture. It could be longer, cause there is no law preventing you from firing and hiring attorneys and could just do this indefinitely, thus preventing my friend from ever getting to spend the weekend with his children until this is over. | ||
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