Justices of the North Dakota Supreme Court appear to see family law going down a slippery slope if they accept a man's novel theory that his former wife's breast implants should be counted against her in their divorce.

Courts may consider anything classified as a “marital asset” in dividing property between a divorcing couple. Erik Isaacson of Mandan, N.D., has ventured into uncharted waters by requesting that his ex-wife Traci's breast implants be declared a marital asset.

A Morton County District Court judge vehemently rejected the request, saying he couldn't “imagine people would actually waste time thinking that breast implants are marital assets. It just defies common sense.”

Erik Isaacson's attorney, Christina A. Sambor, argued in an appellate brief that “There is a legitimate question as to whether Traci's cosmetic surgery, paid for during the marriage, but benefiting and remaining with Traci upon divorce, is an asset that should be counted in the distribution of the marital estate.”

But no precedent recognizes breast implants as a marital asset. And earlier this month, several North Dakota Supreme Court justices were skeptical about taking the law that far.

Justice Crothers

“Is dental work a marital asset?” Justice Daniel A. Crothers asked Sambor during oral arguments. “Is a hip replacement a marital asset? Where do we draw the line?”

In a listing of assets compiled as part of their divorce, Erik Isaacson valued his ex-wife's implants at $5,500, representing the cost of the surgery. District Court Judge Robert O. Wefald denied his lawyer even an opportunity to present evidence about the value of the implants.

“I don't know how you would expect me to award breast implants,” he said. “Do you want me to have them cut out and given to Mr. Isaacson?”

Sambor told the Supreme Court that the implants should be considered a marital asset because they were “clearly cosmetic, elective, [and] not necessary.” Other jurisdictions “have held that such elective surgeries are properly counted in the marital estate,” she said, referring to decisions from Hawaii, Delaware and Kentucky.

But those cases involved either a cosmetic surgery that occurred after the parties separated or a bill for cosmetic procedures incurred during a marriage. If a party to a divorce makes unnecessary or unjustified expenditures after separation, that may be considered a wasteful dissipation of the marital estate.

Traci Isaacson had her surgery before she and Erik separated in January 2007. A post-separation surgery is “not a distinction without a difference,” Sherry Mills Moore, an attorney for Traci, said in a brief.

In his questioning of Erik Isaacson's lawyer, Justice Crothers asked how she would “draw a distinction between cosmetic surgery and a vacation to the Bahamas.”

“When you look at the result of cosmetic surgery,” Sambor responded, “there is some sort of tangible change to a person whereas a vacation is something that is an experience and there's really no --”

Crothers interrupted, saying, “That sounds a whole lot like calling the other person property.” He had earlier described that idea as “completely repulsive.”

Another justice wondered how Sambor could base the value of Traci's implants on the cost of the surgery. “The reasonable value of a car I bought 5 years ago is not the cost of the car,” the justice observed. “It's the value at the time of trial.”

By Matthew Heller
12/27/09