K-Files: The Case of the Misunderstood Breast Implants

“K-Files” is a chronicle of Keeley Nickelson’s career journey as a divorce lawyer and the unique experiences she aims to share with others who may encounter similar unknown and unusual territory.

Clients navigating the divorce process are not always at their best emotionally – but that’s not really their fault. Divorce is stressful, especially if you don’t understand the rules of the family court system. One of the more interesting issues my colleagues and I have heard a handful of times — yes, this comes up with some frequency — is a request for reimbursement for the breast implants the soon-to-be former spouse is leaving the relationship with.

As an attorney, I have a pretty straightforward view of the answer (“um . . .no”). But for argument’s sake, could the family court consider breast implants as property? And could they be subject to division in a divorce?

In the most technical sense, the implants are property. So why wouldn’t they be subject to division and/or reimbursement in the property division? After all, only one person can use them, and they do have value, in a sense.

Unfortunately (or fortunately, depending on your position) our courts don’t see it that way.

While breast implant surgery is an elective procedure, family courts could still view the underlying expense as medical in nature, which could take the implants out of the property division discussion.

Implants could also be considered a gift, depending on the circumstances in the individual case. Though not as commonly given as gifts of jewelry, a fancy purse, or golf clubs, for example, gifts come in all shapes and sizes and are given for any number of reasons. The purpose of the procedure (elective or not) will not necessarily impact the court’s determination of whether the procedure was intended as a gift. And if the court determines that a gift was intended, the court will rule that the gift is the separate property of the recipient, and therefore not subject to division in the divorce. Just like gifts of jewelry, the fancy purse, and the golf clubs.

Beyond the two practical points above, I would stress the following: making the argument that you want reimbursement for breast implants may well cause the court to look unfavorably on you, which could affect the outcome of other — more important — aspects of your case (like child custody). Jeopardizing the big ticket items for issues tied to what may, in the final analysis, be the client’s emotional upset is not strategic, to say the least.

Attorneys understand that divorce can cause irrational thoughts. But arguing over custody of “the girls” should be reserved for children or pets, and never breast implants.


ABOUT THE AUTHOR: Keeley Nickelson an attorney with FORESTER PURCELL STOWELL PC, a Northern California law firm focused exclusively on specialized counsel for complex divorce and family law issues. The firm regularly represents business owners, professionals, and other high net worth individuals (or their spouses) in divorce, premarital agreements, and related actions. Keeley can be reached at info@foresterpurcell.com or 916 293 4000. This information is general in nature and should not be construed as legal advice.
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