Bottom-Line Divorce

By Josh Fitzhugh
(Originally published in New York - September 29, 1980)

Raoul Lionel Felder doesn't exactly deal in virtue. He's a divorce lawyer, big-time. His specialty is helping upper-middle-class women squeeze every penny they can out of their rich ex-husbands.

Lately, Felder's practice has been better than ever. In June, the state passed a new divorce law that treats marriage as an economic partnership and down- plays any question of fault. Since then, Felder says, he's been getting five to ten calls a day from women eager to dissolve their partnerships and divide the assets.

But something is troubling Raoul Felder. Sitting behind his cluttered desk in his Victorian, book-lined office, he tugs on his gray beard and frowns. The new law, he says, is a "retreat from morality," a "step backward in the institution of marriage." He leans forward and lowers his voice. Divorce law, he confides, doesn't really punish adultery anymore.

What's going on here? It wasn't too many years ago that a good scratching-and-biting divorce was red meat for the tabloids, a license for some skinny gumshoe in a stained overcoat to burst into a Poconos motel room, snapping pictures. Forget the gumshoe; the age of the accountant has arrived. New York's new divorce statute is designed to drag the law into line with the modern world. And in this bottom-line era, that means morality is out, money is in.

New York isn't a pacesetter in this area. Thirty-seven other states have a1ready passed similar legislation. But with some 60,000 divorces granted here annually, involving some of the world's richest couples, a lot of people are watching to See what effect the law will have besides serving as an anti-reces- sionary device for lawyers. And though Felder is in a clear minority with his talk of a fundamental change in the "warp and woof of marriage." It's not quite clear where the family will end up when law imitates life.

In essence, the new law gives each spouse in a divorce an "equitable" share in the assets of the marriage.

The house, the car, the Chippendale cabinet -no matter whose name is on the title, the property acquired during wedlock is lumped together and divvied up.

Does the husband have thousands tied up in a business he helped build? That goes in the kitty. Did the wife work twelve hours a day for twenty years tending house for the old boy and the kids? For the first time in New York, that contribution is assessed and tossed in too. Gone, except in cases of older, financially dependent women, will be the long years of alimony. Instead, there'll be short-term "maintenance" payments and a lump- sum distribution aimed at freeing each party to get on with the next stage of his or her life, unencumbered by the past.

In deciding what's "equitable," the judge is supposed to weigh such factors as the family's standard of living, the contributions of one spouse to the other's career, and the tax consequences to both parties. The grounds for divorce remain the same things like separation, cruel and inhuman treatment, and even adultery. But since the last reform, fourteen years ago, grounds are rarely disputed anymore, and now, under the new law, they aren't supposed to be important in parceling out the property. "The role of who did what to whom will be reduced to a minimum under this law," says Julia Perles, a tall, tough-talking partner of Louis Nizer's who lobbied aggressively for the legislation. "Our goal was to put marital fault into an economic perspective."

That's not very romantic, but it is trendy, in a legal way. Sir Henry Maine, the great nineteenth-century legal historian, once said that the whole progress of law is from status to contract. Marriage is a case in point.

When English law first took an interest in the family-about the time some suspicious, Crusade-bound nobleman invented the chastity belt -a wife was basically treated as her husband's property, to do with as he saw fit. Her status and the strict moral standards she was supposed to uphold were imposed by statute and common law.

Gradually the state has stepped back and let husband and wife negotiate their own relationship. In recent years particularly, the state has all but abandoned trying to control morality in marriage and has even recognized marital rights where 'there's been no official ceremony, as in the famous "palimony" case involving Lee Marvin and Michelle Triola.

"...New York's new divorce statute is designed to drag the law into line with modern life. That means morality is out, money is in..."

Like a weary dorm mother who's given up hope of imposing her idea of virtue, the state these days really only cares about preventing flagrant promiscuity and seeing that no one in the family ends up on the public dole.

"While an open-marriage agreement is still invalid in New York State, you can stimulate to almost anything else," says New York University professor emeritus Henry Foster, an authority on family law and one of the principal drafters of the new statute.

In a sense, the grandmother of the state's divorce reform is 32-year-old Ethelyn Daniel. That's Dr. Ethelyn Daniel today. Five years ago, when her divorce came to trial, she was Mrs. Charles Morgan, a former biology student who had worked for years as an executive secretary to pay her husband's way through law school. At the trial, Daniel told Justice Bentley Kassal that her husband should pay extra alimony so she could fulfill her dream of going to medical school.

Justice Kassal, a former matrimonial lawyer himself, agreed. "A wife should not be automatically relegated to a life of being a well-paid, skilled technician laboring with a lifelong frustration as to what her future might have been as a doctor but for her marriage and motherhood," the judge wrote.

But there was a hitch. Before awarding alimony under New York's divorce statute, the judge was required to weigh whether the wife was "self-supporting" -as Ethelyn Daniel clearly was. On appeal, Kassal's alimony award was reduced by the Appellate Division, which implied the trial judge had misread the law.

Nonetheless, Daniel managed to make her way through Albert Einstein College of Medicine at Yeshiva University.

Meanwhile, Morgan v. Morgan was being dissected in the law reviews, and the case focused attention on a recently drafted equitable-distribution bill. The largely male, upstate-dominated State Legislature wasn't enthusiastic; one rumor had it that two members of the key Senate Judiciary Committee routinely squelched the bill every year because of their own matrimonial difficulties. In 1979, however, in Orr v. Orr, the U.S. Supreme Court struck down as discriminatory an Alabama statute that denied alimony to men.

Since New York's Domestic Relations Law had a similar provision, the decision forced the Legislature to act which was just the opening Perles and company needed.

Though the law finally adopted applies to every divorce in the state, its economic impact won't be felt much by the poor (with few assets) or the blue-blooded rich (whose inherited wealth is exempt from equitable distribution). Today's young working couples, who enter and leave their marriages with financial independence, won't find their economic relations shuffled. (They are expected, however, to follow the law's encouragement and flock to file agreements on how they'll settle prop- erty or custody in the event they get divorced.)

The real beneficiary of the law is supposed to be Mom, the old-fashioned star of TV sitcoms and Norman Rockwell paintings, who stays home to raise a family and keep the house while her husband builds a business or professional practice. To her, the new law is a kind of emancipation proclamation. In the past, about the only financial spoils she could hope to get in a divorce were the house, a few pieces of family property, and alimony. And she wouldn't get the alimony if her husband could prove she was at fault if, for example, she'd committed adultery. Today, she can claim a piece of anything the couple acquired during the marriage and as a sort of grubstake to start use it fresh.

Ironically, the main opposition to the new law didn't come from die-hard male chauvinists but from Westchester/Rockland Senator Linda Winikow andthe National Organization for Women, who argued the bill didn't go far enough. Senator Winikow wanted the law to contain a presumption of equal -as opposed to equitable-distribution, so that marital property would be split 50-50 unless one spouse could prove that was unfair. "If you look at the history of equitable-distribution states, you'll find that the value of a homemaker is never considered equal to the wage earner," she says. "Usually, it's 80-20 or 70-30 in the wage earner's favor." Her prognosis gets even gloomier.

Because the new statute circumscribes the payment of alimony, Winikow says, "women will lose what they had previously." The only people who will gain, she contends, are the matrimonial lawyers who fought for the bill. "They will make out like bandits," she predicts.

Governor Carey signed the bill June 19, but the law didn't become effective for 30 days. The interregnum created some curious legal maneuverings - a kind of husband-and-wife game of tag, with a juicy divorce settlement going to the winner. The man who'd been contemplating divorce but putting it off suddenly moved to start proceedings under the old law. The woman who hoped to gain by the legislation either made herself scarce (to avoid being sued) or underwent a swift, brief transformation into a Total Woman to buy time until independence day, July 19.

Sarah, for example, is an East Sider who had been unofficially separated from her husband, a lawyer, for five years. Though they'd talked about divorce, neither thought it until one or the other necessary wanted to remarry.

"All of a sudden, in early June, my husband started pushing me to wrap things up," Sarah says. "He said the relationship was terribly distressing to him, that he wanted to end it. I was so stupid. I just didn't put two and two together.

"Two weeks before the new law became effective, I received some legal papers in the mail. They said all sorts of slanderous things. They were papers for divorce. That's when I realized he was trying to get his knocks in before July 19."

Sarah managed to avoid being personally served with papers for the next two weeks. At midnight on July 18, she was 30,000 feet up in an airplane returning from Florida. A motion is pending to dismiss her husband's lawsuit; she, in turn, is preparing to sue him under the new law.

"It was inevitable that we would get divorced," Sarah says, "but I was content to let it ride. Now, by his actions, I assume he's trying to protect a lot of money. One does not suddenly get a psychological urge to be divorced ten days before a new statute becomes law."

"... The one given under the law is that legal fees will soar. 'Iit may be cheaper to hire a hit man,' says one woman in a divorce suit..."

Every matrimonial lawyer in the city has clients, mostly women, who had been holding off divorce actions until the reform took effect. "See those files there?" one lower-Manhattan attorney asked a prospective client last year, pointing to two large cabinets. "Those are women waiting for the new law to be divorced."

"Sad to say, people get divorced for money when you make it profitable enough," says Raoul Felder.

Accountants and appraisers will have to be hired to trace property and assess any business in which either spouse has an interest. How much is a partnership in a Wall Street law firm worth? What if one spouse inherited money that was then used by the other to start a now flourishing business? The mind boggles; the legal fee soars.

Indeed. one of the few givens of the new law is that it's going to cost more to put asunder what God hath joined together. With matrimonial lawyers in New York getting from $ 100 to $250 an hour, with appraisers and account- ants darning almost as much, and with trials expected to take several times as long because of expanded discovery and cross-examination of expert witnesses, contested divorces requiring distribution of marital assets may cost $20,000 and up-for each spouse. "It costs money to do equity ," says Ms. Perles. "It may be cheaper to hire a hit man," says one woman involved in a bitter divorce.

Lost in the middle of all these columns of figures will be much concern about the moral conduct of the parties. Felder says this presents "a license to misbehave." Others are more circumspect. Veteran divorce lawyer William G. Mulligan says that in the old days he used to tell divorce-minded clients a "frightening" story about a woman who was left with nothing in a divorce because she was caught trysting with her boyfriend. The point was clear: One discovered indiscretion could demolish a case. Today, Mulligan says he's jettisoned the moral tale in favor of more tempered advice: Don't be flagrant.

But the legal jockeying of the summer is expected to be just a prelude to the open combat to come. In the past, many men didn't care about divorce as long as they got a good deal; alimony, after all. was tax-deductible.

But a successful businessman with a a lot unlong marriage stands to lose der equitable distribution; he may even face a stiff capital-gains tax on the transfer of appreciated property to his wife. (Some lawyers think the tax will apply when the property transferred is only equity in a business.) The upshot, says attorney Edward Schaeffer, is that a lot of husbands may try to beat the case to prove, for example, that there was no cruel and inhuman treatment.

At the very least, there will be monumental contests over who owns what.

Studies in other states have shown that most couples are unaware of changes in laws governing the family.

People don't get married thinking about divorce. Still, some family counselors believe that to the extent couples do know about New York's new mari- tal constitution, the effect will be healthy. Fear about the future is dimin- ished. The law gives the homemaker economic clout and, thus, a new measure of self-worth. This, the experts say, is necessary for love.

"The man who can walk all over his spouse is not a responsive husband," says psychologist Dr. Joyce Brothers, the columnist. The Right Reverend Paul Moore, Episcopal bishop of New York, agrees. "If a marriage is held together only by the economics, it isn't much of a marriage," he says. He hopes the new law will eliminate some of the "terrible vindictiveness" he finds in some divorced women.

Where does that leave us? The rules of the game have obviously changed, and New Yorkers will have to adjust.

The telltale signs used to be so familiar: lipstick on the collar, mysterious phone calls, a dreamy gaze. Now the clues are different: a sudden fastidious- ness about financial records, hurried "business" trips to Switzerland or the Bahamas, a strange conversation at dinner about how the IBM stock was purchased before the marriage. Call your lawyer; buy a calculator. Get ready for the bottom-line divorce. -