Fighting with the Gift of Life During Divorce
By: Gerri L Elder
A New York surgeon locked in a bitter divorce battle
with his estranged wife is taking divorce battles to a whole new level.
Dr. Richard Batista, a surgeon at Nassau University Medical
center, is demanding that his wife either return the kidney he
donated to her in June 2001 or pay him $1.5 million as compensation for the
donated organ.
According to an Associated
Press report, Dr. Batista decided to go public with his extreme divorce
demand, frustrated with Mrs. Batista for allegedly withholding
visitation with the couple's three children. He claims that Mrs. Batista has prevented him from seeing the children
for months at a time during their nearly four year divorce battle.
Mrs. Batista filed
for divorce in July 2005. Dr.
Batista claims that sometime around 18 months to two years after receiving his
kidney, she began having an extramarital affair.
Legal experts say that Dr. Batista will have a difficult
time establishing the fair market value of the kidney, given that federal law
prohibits the sale or purchase of body parts. However, Dr. Batista claims that he did not grab the $1.5 million price
tag out of thin air. He says the
value of the kidney includes Mrs. Batista's earning capacity for the years that
she worked, and is likely to work, after the receiving the
transplant. He has also lined up an
expert witness to testify to the worth of the kidney.
Even so, the idea that Dr. Batista's demand will be granted
is far-fetched at best. A donated organ
is a gift -- not marital property or asset to be divided during
divorce.
During divorce, gifts are usually deemed separate
property of the recipient and are not subject to the division
of assets process. There
is no cash compensation or repossession of gifts during divorce. Breast implants are a common topic in divorce
cases but are treated as gifts and belong solely to the
recipient.
As a gift, the donated kidney now belongs to Mrs.
Batista; however, Dr. Batista's divorce
lawyer has admitted that his client doesn't seriously want the kidney
back. The surgeon is upset about Mrs.
Batista's alleged affair and child
visitation issues. He has brought up the issue of the kidney solely to
draw attention to the divorce case: Mission accomplished.
An additional thing Dr. Batista may have unwittingly
accomplished is sanctions. Often judges find outrageous claims and demands irritating as well as a
waste of valuable time and resources. By
frustrating the court, Dr. Batista may lose out and
have to pay Mrs. Batista's attorney's fees if sanctions are imposed.
