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Egg-freezing and the conception of a couple's common life

The challenges of dividing marital property in the divorce process are one the recurring themes of this blog. We’ve consistently tackled nuts-and-bolts aspects of this, such as retirement accounts, real estate and the risk of asset concealment.

For this post, let’s look at how the increased feasibility of egg-freezing could conceivably reshape the definition of what can be included in a divorce property settlement. If a woman whose fertility window is closing seeks to freeze her eggs, should her ex-spouse contribute to the financial cost of doing that?

The case we’ll look at arose in New Jersey, not Illinois. But such issues can now arise anywhere across the nation, at the intersection of improved egg-freezing technology and a high divorce rate.

In the New Jersey case, a 38-year-old woman and her husband are getting divorced. She is asking him to help pay the bill for an expensive egg-freezing procedure that reportedly cost thousands of dollars.

On many levels, this is an understandable request. After all, a woman’s window of fertility begins to close rapidly as she gets deeper into her 30s. Many men, by contrast, have much more extended possibilities to father a child.

But what exactly is the legal rationale behind the inclusion of egg-freezing fees in a property settlement? This rationale is not so easy to articulate. If a woman wishes to have a child after the marriage, it certainly doesn’t fit into the traditional notion of child support.

Some commentators contend, however, that egg-freezing fees should, in certain cases, be included in the division of marital debts and assets. The answer may depend, to a significant degree, on how a couple conceived of their common life.

Source: The New York Times, "Alimony for Your Eggs," Sarah Elizabeth Richards," September 6, 2013

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