pp. IV, V
“Power Divorce: High-earning, professional women are the big losers
in the divorce courts. Brooke Kroeger finds out why.”
By BROOKE KROEGER
Here is a new take on injustice: a woman marries, then studies to become
a doctor or a lawyer, or starts a business. Her husband doesn't stop her.
but he doesn't help her much either. When they divorce, he can get up
to half of what she has earned.
-The woman who raised five children and then became a lawyer without any
financial help from her husband. He sued for divorce and half the value
of her law license. The court granted him 20 percent of that value. He
has appealed the judgment. He wants more.
-The woman who used her personal resources to cofound a business. Her
husband then left her for another woman. She sued for divorce and offered
him their major personal
possessions to expedite a settlement. But he waged a four-year court battle
for her half-interest in the firm, which cost her $72.000 in legal fees
for what in the end was a $6500 judgment.
-The fledgling manufacturer who gave up her half-interest in a one million
dollar co-op and four shops to keep her ex-husband out of her new business.
He has yet to meet his financial obligations to her in their settlement
and even tried to take all of her jewelry.
-An attorney who divorced her banker husband, who had earned half as much
as she did during their six-year marriage. She didn't think he would lay
claim to part of her law license---and he didn't but he could have under
law. To make sure the issue never came up, she gave him all their joint
belongings -- a collection of icons, Oriental rugs, and other antiques.
Where is the national debate on these legal hijinks for women? Their plight
is not likely to reach the cutting edge of matrimonial jurisprudence.
When you consider that only 1 percent of forty-eight million married women
in this country have incomes of $50.000 a year or higher, it's easy to
see why no one is waving the cudgel on behalf of those who are worse off
than they should be, but so much better off than most.
That is to say, there is no rush to confront the problems of this very
aggrieved but still very elite group. The sympathies of the courts will
not be with them anytime soon. For now, their only defense is a solid
prenuptial or postnuptial pact.
And yet, though the numbers are still small, the percentage of women earning
in the upper brackets continues to grow, enough so that some in the legal
vanguard acknowledge that the imbalance created by treating a successful
wife exactly as you would a successful husband - even though their situations
are not really equal - will have to be addressed.
"There are going to be more and more of these women in the coming
years," says Leonard L. Loeb, past editor of the Journal of the American
Academy of Matrimonial Lawyers, "and the laws are going to change."
Of course the laws already changed once in the interests of women more
than a decade ago. The system of equitable distribution is now in place
in forty-one states. It came about largely to protect the dependent homemaker
who raised children and entertained clients to advance her husband's career
and then found herself with little or nothing when the marriage fell apart.
The idea was to ensure her claim to an "equitable" share of
the family's assets even though her contribution had not been financial.
What no one seemed to anticipate was how these laws would work against
a woman who earned her own assets during the marriage. Her husband was
probably not "Mr. Mom." In fact, the only thing he was likely
to have done to advance her career was stay out of her way. And yet, in
numerous cases, judges have treated the uninvolved husband as they would
the dedicated homemaker, decreeing his entitlement to a portion of the
business she may have established or the value of the medical or legal
license she has earned.
If he truly enabled her to estab lish herself -- through financial
contribution or sacrificial domestic support -- so be it. 'What's good
for the goose" and all that. But what if he didn't?
It is impossible to generalize from specific cases. Laws vary in different
jurisdictions, as do the attitudes that contribute to interpreting them.
The uniqueness of every set of circumstances cannot be underestimated,
nor can the effects of bad and good lawyering.
What can be gleaned from case histories and interviews with divorcing
women, attorneys, judges, and other experts in the field is a sense of
outrage at what happens when this select subset of working women - the
group so many of the other 99 percent would aspire to be - end up in divorce.
Margaret and Brian Holihan were both teachers when they married in 1960.
She left teaching to have their first child two years later, and then
had four more in quick succession. Money was tight. Margaret sewed the
children's clothes and ran credit cards to the limit to keep the family
going. They had no savings except for Brian's accruing pension, and were
heavily in debt. It was clear that if the children were going to go to
college, Margaret would have to go back to work. In 1975, when the youngest
child started school, Margaret applied to law school. She was accepted,
won a scholarship, and took out loans that she repaid herself to finance
her education. By now, Brian was a guidance counselor, home from work
early. The children were old enough to fend for themselves, but Brian
did help out more at home and sometimes picked up Margaret at the train
with the family car. She studied hard. She made editor of The Law Review.
A prestigious New York City firm hired her in 1979.
With her earnings, Margaret started paying off the debts, as-suming the
major household expenses, including mortgage and taxes and all the children's
private university costs. Brian began paying only for food and utilities.
The couple grew apart. Brian began keeping most of his income for himself.
Five years after she started working, Brian sued for divorce and half
the value of Margaret's license to practice law -- the family's major
asset other than their home and Brian's pension.
At the time, Margaret was earning $110,000 a year and Brian, $42,000.
An expert appraiser was called in by Brian's attorney to evaluate Margaret's
law license. In New York, Ohio, and Michigan, a professional license or
practice begun during a marriage by one spouse is classified as marital
property to which the untitled spouse has claim.
In the Holihan case, Margaret's law license was valued at $810,000 after
taxes. From that, the appraiser deducted the projected amount she would
have earned as a teacher---the profession she established before the marriage
making the marital value of the law license roughly $584,000.
The judge, Alfred J. Weiner of New York's Rockland County, granted Brian
20 percent of the value of Margaret's license, saying: "His (Brian's]
encouragement and support enabled the defendant to concentrate on her
efforts to successfully complete law school and to pursue her legal career.
During this period of time, the plaintiff assumed increased responsibilities
in taking care of the children and the marital residence. However, the
plaintiff continued in his position as a guidance counselor and at no
time did he sacrifice his own career."
Brian Holihan has appealed, seeking a full 50 percent of the value of
Margaret's law license. He did not challenge Margaret's award of half
the value of his pension, appraised at $174,000, but he did contest Judge
Weiner's order that he reimburse Margaret for a limited portion of the
children's college bills. At publication, the appeal is pending.
Attorneys who hear the details of the Holihan case tend to agree with
the original judgment. Had it been the husband who earned the law degree
during the marriage, there would likely be strong feelings that his wife
would be entitled to a portion of its value. A wife is likely to have
had responsibility for the household and children and may have taken on
an unsatisfying job to help support the family.
But the question Margaret Holihan might ask is why should a husband who
does not sacrifice his own career prospects, his money, or his own leisure
time be rewarded for doing what should be expected of any husband whether
his wife is in law school or not: to help out when needed with the kids
and the house, and to be supportive to his mate?
"You get a very interesting situation when someone who goes out and
works is penalized," said Peter Bronstein, the New York City celebrity
divorce lawyer. "Let me tell you the primary difference [when the
wife is earning significantly]. The husbands are usually not stay-at-home
care-for-the-home homemakers. They are usually business people or professional
people. And he's not usually taking care of kiddies, giving dinner parties,
decorating. He probably doesn't have the time."
Of course she doesn't have the time, either, but she often performs those
tasks anyway. "Does she get credit for her second job as a homemaker?"
asks attorney Sanford Dranoff, president of the New York chapter of the
American Academy of Matrimonial Lawyers. "The court says no."
New York Justice Jacqueline Silbermann cited her decision in another case,
Delli Venneri v. Delli Venneri, a childless marriage of seven years at
the time the wife sued for divorce in 1984. She had started a small executive
search firm with a partner the year before the marriage broke up. Her
husband, an out-of-work tax specialist, claims to have helped her in the
business by doing one income projection and having conversations with
her about it. He left her for another woman, according to published documents,
and then harassed her to get back into their rented one-bedroom apartment,
allegedly threatening her life.
On appeal, she obtained a precedent-setting court order giving her temporary
exclusive possession of the apartment. She then sued for divorce. In settlement,
she offered him the apartment, their car, their furniture and their small
savings. But he wanted half of her interest in the business. The case
dragged on for four years.
After the trial, Silbermann awarded him half the furniture, $2500 toward
the cost of his legal fees (since he was out of work), and 10 percent
of her half of the business in 1984 - or $4000 of the total value of $80,000
- the only year of the marriage the business existed. His total cash award
This was how Silbermann reasoned. "Marital property is marital property,"
she said. "Where your discretion comes in is on percentages. If it's
acquired during the marriage, it's marital property. If it's separate
property that has increased in value, the increase in value becomes marital
property, as long as that increase is not passive [such as stocks or artwork]."
Few would question Silbermann' s decision in the Delli Ven-neri case.
It upheld the law and it was fair. What was not fair was what it cost
Mrs. Delli Venneri in legal fees to reach a $6500 judgment -- largely
because of her husband's sense, firmly rooted in the law, that he could
get much more, up to 50 percent of her portion of the business's value.
Her fees totaled $72,000.
Judge Walter Schackman, a colleague of Silbermann's, said the successful
woman with high earnings can be penalized in court when her husband's
earnings are higher. That was what happened to a patient of JoAnn Magdoff,
a psychotherapist who serves on the New York Interdisciplinary Committee
for Mental Health and Family Law. The woman, a mother of two, turned down
a promotion that would have meant longer hours because her husband insisted
she be available in the evenings as a hostess for his business contacts.
When he sued for divorce, the court focused only on how solid her earning
potential was. She was not compensated for having stymied her career advancement
or for having been so helpful to his business interests.
Indeed, Schackman said a dependent wife may, in some cases, wind up with
a greater share of her husband's assets in divorce than a wife who is
successful on her own. The dependent wife, he said, will be perceived
as having devoted herself to her husband's interests. And, presumably
she would need the money more (though he did not say so).
"That's how the law says we should do it, and it's really a fair
way to look at it," Schackman said.
Stanley L. Goodman is the expert appraiser who valued the Holihan law
license and has often been called upon to make similar appraisals. He
thinks it is particularly difficult for financially successful women to
accept that the courts are going to plop their very personal attainments
into the marital pool. "When she has to give something up,"
Goodman said, "the traditional streak comes out."
"' My husband gets part of this?' is a typical question," he
said. "And the answer is yes."
The courts, obviously, take no notice of what a woman had to go through
to achieve what she did or the limitations on her future prospects when
compared with her husband's. For the financially successful woman, there
is no such thing as handicapping.
As for the divorced women themselves, the six interviewed for this article
all agreed it was better to be rid of their husbands at whatever price
than to quibble about how much property they were going to end up with.
It's hard to imagine the man who would show such detachment about what
he had worked so hard to attain.
Of course, the wifely anguish in all these divorces could have been avoided
if these worsen had sought pre- or postnuptial agreements before they
began accumulating assets. Indeed, all of them said they wish they had
shown the foresight to insist upon such an agreement when it would have
mattered. "Contracts may be unromantic," said the manufacturer,
summing up the collective sentiment. "But it's also unromantic to
get a divorce."