Should Husband Get a Piece of the (Kidney) Pie?
Husband Seeks Kidney Back From Estranged Wife
By Steve Lake
Just when you thought you’ve heard it all, a New York doctor is asking the court to return the kidney he donated his spouse.
In 2001, the wife of Dr. Richard Batista needed a kidney transplant, and since he medically qualified as a match, he dutifully donated his to her. Now in the throes of a bitter divorce, Dr. Batista and his lawyers have filed court documents seeking the return of the kidney, or, in the alternative, the value of the kidney which they estimate at $1.5 million.
The good doctor has accused his wife, Dawnell, of cheating on him and having an affair a few years after she recovered from the transplant surgery.
As a divorce attorney, I commend them on their creativity, but in my opinion there is no chance that they will recover the kidney or the cash. What this case does point out, however, is the frustration that some people experience trying to find justice in divorce court. With most states having some form of “no fault” divorce law, the innocent spouse who did not break his/her marriage vows is angry that the cheating spouse isn’t being punished somehow.
Typically, a gift from one spouse to another during the marriage is considered “non marital” property which can’t be taken back in a divorce. What possibly could be argued though, is if one spouse has significant non marital assets, the other spouse may be entitled to more than 50 percent of the “marital” assets.
So perhaps if Dr. Batista can prove the value of the “gifted” kidney, he may get some financial consideration after all when they slice up the marital pie. Or should I say kidney pie?