Park Avenue Guide to Divorce

Chapter I: How did we get here?

We're writing this in tandem, so each entry is going to have Elaine and Karen speaking separately about a particular aspect of Elaine's divorce.  We're going to lead you pretty much chronologically through the whole exhausting thing.  Sometimes Elaine will weigh in first, sometimes it will be Karen, depending on the topic du jour.

ELAINE:   

    I'm standing outside our house and it all looks perfect.  The white impatiens are abundant despite their being planted in flower boxes and the boxwood is that perfect English green.  Amazingly, nothing has died in our small townhouse garden despite the scorching heat in New York City.  My family and I have just returned from our summer holiday in Bermuda and I'm feeling a little bit spoiled, very grateful, and, truth be told, really cranky that we have to get back to our routines.  The front door opens and our housekeeper lets Jack, our yellow lab, out to greet us.  He sheds all over us and I guess it's good to be home after all.  I know, we looked like a cliche: two fair-haired girls, mother, father, and the dog, but really, we were a nice family. 

    You might be thinking:  "here it comes, it's all going down the drain any second."  But really, I didn't know.  I didn't know that everything would start to move sideways in my life, not in a cataclysmic earth-shifting sort of way, but slowly and sometimes imperceptibly.  Over the next year, everything -- and I mean everything -- changed. 

    That fall my children were starting a new school, my mother-in-law would be undergoing surgery to save her life, and the investment banking firm for which my husband worked was a pressure cooker.  Between kids, hospital visits, and the pressure of work, my husband became an out-of-sort, short-tempered, and increasingly belligerent man who I didn't quite recognize.  His behavior was so out of character, and yet sometimes he seemed so completely himself.  His routine hadn't changed, he dressed the same, weighed the same, worked the same long hours, traveled constantly and when he came home he gave me a kiss, foraged in the refrigerator for something to eat, and then went upstairs quietly to kiss our sleeping girls goodnight.  This was our life and I thought it was perfect.  It was.  Right?  

    But maybe I should mention the hang-up calls that I started to receive that fall and winter late at night before he came home or how my husband always seemed to be in a bad mood and very abrupt with me if I called his office (and really I hardly ever called).  It must be this new deal he's working on, I kept thinking.  It did seem strange that during our annual ski trip out west he no longer made his business calls from the condo we were renting.  Instead he went to the business center at the nearby hotel so that he wouldn't disturb us.  He had never done that before.  It used to drive me crazy that we would always take a business call when we were all underfoot.  He would then raise his hand to silence us as if that were the international signal understood by all that "Daddy is busy."  It might be actually, but he was rarely doing that now.  Now he went to the business center, alone.  

KAREN:

    I, of course, wasn't on the scene yet while Elaine began to have her suspicions that fall and winter, so I don't have much to say directly about her situation at this point.  For now, I'm going to talk for a bit about how I came to find myself practicing divorce law, of all things.

    No one goes to law school planning to become a divorce lawyer.  The very thought conjures up visions of, at worst, a cheaply-suited sleazebag with a bad toupee, or, at best, a slickster Arnie Becker-like character with a perma-tan and a roster of celebrity clients.  Reviled, the butt of innumerable bad jokes, divorce lawyers are not, in any event, generally considered to be the cream of the legal profession.  So how did I, a nice girl from upstate New York with an undergraduate degree from a preppy women's college, end up joining the ranks of the despised? 

    When I graduated from law school in 1986, I became an associate with the law firm for which I had worked as a law student, a "boutique" firm specializing in commercial litigation.  I spent a couple of years there learning how to take depositions and write motions and make my first quavering court appearances, and then I moved on to another boutique firm with an elite clientele.  I ended up working almost exclusively for one of the partners there, a brilliant but unassuming guy then in his late 50s, who, after a career as a commercial litigator had started to handle "high net worth matrimonials," which had become a much more serious and lucrative practice a few years before when New York's divorce laws underwent a sea change. 

    A bit of a historical note here:  before 1980, divorce law in New York was something of a cesspool.  Women didn't receive any assets accumulated during the marriage unless those assets were in jtheir names or held jointly with their husbands.  On the other hand, they received alimony for life or until they remarried, unless they had committed adultery, in which case they weren't even entitled to support.  The practice of divorce law before 1980 was dominated by a few old pros who, I've concluded from innumerable hoary anecdotes passed down over the years, spent most of their time instructing their favorite private detectives to collect and/or invent adultery evidence.  However, once the new equitable distribution law came into effect in 1980, women were now entitled to a fair share of the assets acquired during the marriage (although they were no longer entitled to lifetime alimony), and adultery, while it remained on the books as a ground for divorce, faded into insignificance as a factor in the parties' financial entitlements. 

    This change in the law heralded a shift in the way divorce matters were perceived by the Bar and the courts, and the field began, at least in theory, to attract a better "class" of lawyers.  Many of the newer practitioners brought financial sophistication and top-notch trial experience from years in the commercial and criminal litigation arenas.  In addition, a cottage industry of forensic accoutants, appraisers, and other financial professionals began to grow up around the divorce field, which now revolved less around the prurient details of marital infidelity, and more around complex valuations of closely-held family businesses, and so-called "enhanced earning capacity."  The law even held that a spouse's "celebrity status" could be valued. 

    By the time I landed my new job, nearly a decade after a passage of the new statute, matrimonial law had become a burgeoning new specialty, and my new boss was one of a growing handful of New York City attorneys handling "high net worth" divorces.  My very first assignment was to research the bigamy laws in New York, New Jersey, and two foreign jurisdictions to determine if one of our clients had committed any crime when he participated in a quasi-religious ceremony with his girlfriend that looked and smelled like a wedding, but they insisted wasn't really a wedding.  His estranged wife, with whom he was involved in a protracted litigation, thought otherwise, and was eager to have him prosecuted for bigamy.  As I sat in the libarry of the Association of the Bar of the City of New York (this was the late 1980s, and most lawyers still perfomed their research in law libraries, by reference to actual books rather than Lexis or Westlaw), it occurred to me that this practice area had the possibility to be -- dare I say it -- interesting, even fun.  (And no, in that situation it wasn't bigamy.) 

ELAINE:

 

It finally unraveled.  Late one spring night, three days before my fifteenth wedding anniversary, while my husband was on a plane to Europe for business, I received a phone call asking me if I was Mrs. So-and-So.  I said I was, and I started to cry a little because I knew my husband must have had a heart attack or that the plane had gone down or that he had been in an accident and had never actually made it to the airport.  All of that, as it turns out, would have been good.  Instead, I find out from an anonymous caller that my husband had been having an affair for the past four years, even bringing the woman to our home while I was spending summers in Bermuda with the children.  (He joined us for long weekends of golf at the club, and for a couple of weeks at the end of the summer.)  The caller (someone I later learned "SHE" had bribed to make the call) wouldn't tell me with whom my husband was supposed to be having the affair.  I certainly didn't have a clue. I didn't quite know what to do or to think.  I mean, he was always working, poor guy, he didn't have time for an affair.  Which is precisely what he said when he got home a few days later.  Ridiculous.  But then something really funny happened.  He started to come home early from the office.  Really early.  Three hours early.  He wanted to spend time with his family, with us, and with me.  After all, he told me, don't I have a right to be with my family?  I almost bought it.  Well, that's a lie.  It didn't smell right to me, either.  

Predictably, a few weeks later, the inevitable unraveling came one night during a horrible fight with lots of shouting.  Then he quietly admitted everything.  Everything.  I am not going to identify the "other woman" other than to say that she was someone I knew fairly well (or so I thought) and had no reason to distrust.  I could not believe my husband had ruined our family over her.  I married an idiot.  I'm an idiot. 

I knew what I had to do.  I left the house that night after the emotional bloodletting with my husband, and walked down Park Avenue to see the two friends I knew who wouldn't mind me showing up at 11:30 p.m.  My mother once told me that there were two kinds of friends.  There were the kind who sit in your kitchen and then there was everyone else.  (When a lifelong friend of my mother's died suddenly in her late 30s, my mother was beside herself.  A few years later when that friend's widower had remarried, my mother knew things had really changed.  Now she sat in the living room while the new wife's friends were in the kitchen.)  

My friends Maureen and Jim are two of the very best friends anyone can ever have.  I sat in their kitchen until 2:00 in the morning drinking scotch and I did the mature thing.  I bawled my eyes out.  It wasn't pretty.  Later, when I walked back home I thought about the last several years of my life and the time that I spent waiting and worrying about my husband every time he was working late or traveling. Which if I'm being honest, was nearly every night.  I loved him that much.  I worried about the weight I had put on during four pregnancies.  I worried if I were still reasonably attractive and if that had anything to do with al of this.  Truthfully, I wondered what was wrong with me and the life we had built and the values I thought we shared.  Then I thought about how he had had this other woman in our home every time that I was away with our daughters.  Then, as I stood in front of our townhouse looking up at the dark windows, it came to me.  Oh my God, I needed a lawyer.  

KAREN:  

I continued to find the work "interesting and fun" for the first few years I practiced matrimonial law.  I learned an immense amount, and added several gems to a growing trove of priceless anecdotes.  One of my favorite stories derives from one of the first divorce complaints I ever drafted.  The cruelty grounds included the husband's uncontrollable obsessive compulsive behavior which had wreaked havoc on the marriage and the wife's own mental health.  The husband insisted, for example, that all of the toilet paper in the parties' five bathrooms had to be torn exactly on the perforations.  He also routinely roused the household in the middle of the night to make sure that everyone's mattress was perfectly aligned on the box springs.  He also monitored the broom closet next to the maid's room, and if he discovered, late one Sunday night, that the family's supply of TopJob or Pinesol had fallen below ten bottles (which he deemed to be "crisis level"), he would send my client out into the night to find an open store and purchase an additional reserve of the cleaning product in question.  

I confess I also enjoyed titillating glimpses into a lifestyle that I could not have imagined when I was growing up in a small town in upstate New York (pop. 7,000).  One of our clients had a Renoir hanging over the toilet in the powder room off the foyer of her palatial apartment.   Another had a full-time silver polisher on his household staff.  Yet another, an Imelda-wannabe, had an entire room filled with her shoes and someone who came in twice a week to clean and polish them.  

There were also darker moments, including the time I had to go to court to obtain an order of protection for a client whose husband had pushed her down a flight of stairs.  There was a relocation case we lost, where a heartbroken father attempted and failed to prevent his wife from moving to Florida with their young son, effectively depriving him of any meaningful relationship with the boy.  There was the former professor of ancient history, a Ph.D. rendered childlike by a massive brain tumor, whose clever M.B.A. wife finessed his signature on a separation agreement in which he gave up his rights to any property or support.  There was the mother of newborn twins whose husband walked out on the marriage before she was even discharged from the hospital after her C-section.  

I eventually made a career move and joined a large corporate firm that had a prominent "family law" department.  I became a partner mid-way through my nine-year tenure there, and was by that time firmly entrenched in the matrimonial world.  I worked on a number of exciting cases, some of which even "made law."  I also was involved in many high-stress, even gut-wrenching, matters that caused me to experience insomnia for the first time in my life, and contributed to my ever-darkening view of human nature.  I remained, however, one of the more popular attorneys at the firm's monthly cocktail party, where colleagues in the bankruptcy and pension departments would sidle up to me and ask me if I had any "good ones" that month.  (It's not like their clients were fessing up to them about running off with the au pair, or engaging in battles to the death over their wedding china.)  

Divorce litigation is in many ways just like any other litigation (a "lawsuit is a lawsuit is a lawsuit"), with a plaintiff and a defendant, a sometimes protracted pretrial discovery process, motion practice, depositions, oceans of paper, trips to the courthouse, settlement negotiations, and, if those negotiations fail, a trial.  However, divorce litigation is unique in that, in addition to all of the usual stresses of the legal process, there is an overlay of the emotion, anger, betrayal, hurt, and sheer vindictiveness that can only be felt in relation to someone you used to love.  This human drama can, and sometimes does, undermine the effectiveness of the legal process, and can cause someone with an otherwise sympathetic case to snatch defeat from the jaws of victory.  

I left the big corporate firm in 2001 and am now a partner at a prominent matrimonial "boutique" in New York City.  Now, twenty-plus years on from that first "interesting and fun" bigamy research assignment, I often wonder, "Why do I continue to do this for a living?"  The hours are rotten; the income isn't that good in proportion to the mental and emotional energy expended; the clients can be irrational and demanding, sometimes bordering on abusive; the adversaries do not always conduct themselves as though they are on the playing fields of Eton; the work itself can be sheer drudgery.  On bad days, my answer is "I'm stuck and this is the only thing I know how to do."  On good days, I tell myself, "You're helping people at one of the worst times of their lives.  You're doing good work, and it's worthy."  

Elaine, my co-blogger, is a former client who was never irrational or demanding or abusive (other than that time she kicked the wall in the elevator lobby of my office in frustration after a particularly fraught meeting with her estranged husband).  We thought that telling the story of her divorce, juxtaposed against my explanations of the process, might provide some guidance, maybe even some wisdom, on how to survive your own divorce -- whether you live on "Park Avenue" or "Main Street" -- with some shred of dignity, on how to minimize the financial and emotional cost of the process, and last but not least, on how to spare your divorce lawyer a sleepless night.  

Chapter II: Finding, Interviewing, and Hiring a Lawyer

KAREN:

Your choice of divorce lawyer is one of the most important steps you will take in extricating yourself from your marriage.  The lawyer you pick -- whether he is a white-haired, elder-statesman type, or if she is renowned for her aggressive litigation tactics -- will set the tone for your matter and will determine many aspects of how it proceeds through the negotiation process, and, if that fails, into the courthouse.

Professional credentials are important, but it is also critical that you have a good rapport with your attorneys.  You have to feel comfortable telling him or her about the intimate personal and financial details of your life -- sometimes things that you have only ever confided to your sister, your closest friend, your therapist, or no one.  Therefore, you should interview several attorneys -- some from large firms, some from small "boutique"-type firms, some men, some women.  Many women express a strong preference for being represented by a female attorney, thinking that "she will understand" what they have "gone through." This is a short-sighed, one-dimensional view.  Not all female attorneys are automatically warm, nurturing, and sympathetic to your plight; not all male attorneys are misogynistic jerks.  Do yourself a favor and interview attorneys of both genders.  One older (male) attorney of my acquaintance expressed his view on this point, in particular with respect to women who have been stay-at-home wives and mothers:  "Women shouldn't really want to represented by female lawyers, who, after all, have to haul themselves out of bed every morning, go to the office, and make a living.  Those aren't the lawyers who are going to be sympathetic to the stay-at-home moms.  What those wives really need is to be represented by a chauvinistic a**hole who thinks that women are naive and need to be protected."  Ahem!  While this largely self-serving view is, admittedly, equally offensive to women professionals as well as women who have chosen to devote themselves to home and family, let it be food for thought when selecting your attorney.  

    It is critical that you hire a lawyer who specializes in the matrimonial field.  You wouldn't go to a dermatologist to set your broken arm, or consult an ophthalmologist for an ulcer, would you?  Well, when it comes to your divorce -- quite possibly the most important personal and financial transaction to which you will ever be a party -- you shouldn't hire that nice guy who handled your real estate closing ten years ago, nor your cousin's husband the patent attorney in Cleveland, nor the corporate lawyer your best friend employed to take her company public.  Unless you live in a very small town, where some attorneys are still generalists handling a wide variety of matters, the legal profession has become very specialized.  (However, even if yours is a "Main Street" case, you should still try to find someone who handles more than one divorce per decade and has more than a passing acquaintance with the domestic relations law of your state.)   

ELAINE:

New York City is a very small place.  Move there, stay a while, have kids and by the time they're in kindergarten you couldn't commit a crime without everyone knowing that it was you.  Nearly nine million people and yet when you are about to embark on a divorce your whole world shrinks even more.  At least that's how it felt to me.  I wanted to be discreet but I needed help.  How was I going to find a lawyer?  I wasn't about to pick one from the gossip columns . . . my life didn't resemble anything like the lives of the people I read about.  So I called my closest friends, only one of whom is divorced.  All the others have been in long happy marriages.  But the one piece of good news is that at least everyone knew someone or a friend of a friend who had been divorced.  I got my short list.  Curiously to me, but not to those in the know, the same names came up over and over again.  Now the hard part.  I had to put on my "big girl" pants and start dialing for lawyers, hoping that I would get in to see one of these people without hearing the dreaded news that my husband had beat me to it.  I was lucky, he hadn't, and I was free and clear to start this miserable exercise.  So lucky.  

I didn't notice it at my first visit, but every divorce lawyer has a box of Kleenex on their desk. Gee, I wonder why?  After my third visit to an attorney's office it finally dawned on me that the Kleenex tissues didn't just miraculously appear.  I now have visions of office managers at these firms ordering crates of this stuff for all the weepy dames who file in.  I was one of them.  I didn't arrive for my appointments looking this way of course.  I made every effort to pull myself together with a smart suit, good shoes and appropriate bag and I would always attempt to do something with my hair.  Which if you know me can be an unruly mess.  But no matter what I did to make myself presentable, I always emerged from a consultation looking the same way.  Kleenex in hand, big red nose and mascara running down both sides of my face.  I looked and felt like a dishrag.  There was nothing I could do.  The attorney would politely ask for my background information, the length of my marriage, etc., and then it would happen.  I would just keen from the pain and humiliation and reach for the Kleenex.  I hated myself for not having more control but I really couldn't help it.  It just hurt so much.  (Karen assures me that I shouldn't have been embarrassed because "everybody cries when they see their divorce lawyer. We see more tears than anybody but the shrinks.")  Then would leave their office buildings (they all seem the same), catch a glimpse of myself in the lobby mirror and conclude one thing:  I look like a mental patient.  I suspected that every attorney in one of those buildings must have clucked to themselves, "there goes another one." During those early days I may have been just that.  My confidence was shot, I was convinced I was homely and stupid and let's face it -- I'm lousy with numbers.  What was the use?  

    During what I thought were happier times, when my husband was being besieged by telephone calls from corporate attorneys working on one of his deals, I used to joke that "someday I want to be a client."  I figured that way, I could get all the attention AND a cup of coffee.  Now the prospect of being someone's client didn't seem so funny to me anymore.  Matrimonial law is different.  Very different.  One of the attorneys I met with actually held my hand as I shook uncontrollably telling him about the events of my life.  "What am I going to do?....He ruined my life . . .  wha-what will happen to me and my girls?"  I just couldn't stop crying.  Then he told me I had nice legs and mentioned something about seeing a movie.  What?  Time to go.  This was going to be harder than I thought.  One lawyer spent most of his time complaining about his bad back.  All I wanted to do was complain about my life.  It seemed fair.  He might have had a bad back but at least he wasn't getting a divorce.  I also met with an attorney who told me that once I got a divorce I was giving license to my children and future generations of our family to get a divorce. This came as quite the revelation, as at this point I wasn't giving permission for my kids to have certain sleep-overs, much less get a divorce thirty years from now.  This attorney was on his third marriage and is considered to be one of the pre-eminent matrimonial attorneys in New York.  So much for love in the big city.  

And then I found him, my hero, my Bill.  Well, not exactly, he IS a divorce lawyer for God's sake.  He would agree.  He's no angel but I needed a quarterback and he was the guy.  That's how I met Karen, of course.  I have to digress for a moment and say although Karen and I would meet at a later stage in my case, it was fortuitous for a lot of reasons.  The first reason -- and I hope you never do what I did during the early stages of negotiations -- was that I was too embarrassed to admit to Bill that I was having trouble following the financial complexities of my case.  I clammed up and did a lot of head-nodding in agreement and feigned complete understanding but I didn't know what the hell he was saying.  Karen must have sensed my unease, smelled the fear, and gently told me as Bill was busy bellowing at my husband's lawyer over the phone one day that she would go through the numbers with me after our meeting.  She was a life saver.  I should have told Bill the truth earlier but I liked the idea that he thought I was so smart and savvy.  Stupid, stupid, stupid.  Don't do this!

What really sealed the deal on my friendship with Karen, however, was the day a few months into my case when Bill remarked to us about a "blind" item that had appeared in one of the city's tabloid gossip columns earlier that week.  Speculation had been rife about the identity of the un-named matron "of a certain age" with an impeccable pedigree who had been caught in flagrante with her 15-years-younger boyfriend in one of the dressing rooms at a Madison Avenue boutique.  Bill had heard that morning that the mystery woman was rumored to be "Mrs. X," the widow of a former politician.  I had seen her around town for years at one charity benefit or the other, a victim of some very bad plastic surgery, and all I could think was "Ugh!  SHE'S having sex?!"  Now, Bill, being of a "certain age" himself (sorry, Bill), was getting quite a chuckle out of this, but I thought my head was going to pop off and Karen was slack-jawed. We silently telegraphed to one another over Bill's head, and Karen gave me the high-sign that we would discuss after the meeting.  As she walked me to the elevator a couple of hours later, we were like a couple of busy-body high school girls.  "Wait a minute -- How could this be?"SHE has a boyfriend?"  "She's a hag!"  "She doesn't even have that much money!"  "What's wrong with US? We're attractive, aren't we?"  (Aren't we?)  We laughed ourselves breathless.  At that point, I knew that I not only had another great lawyer on my team, I had a friend.  

Wait -- where was I?  Oh yes -- my initial consultation with Bill:  despite my best efforts, I had to reach for the Kleenex.  Funny, after you do this a few times, you don't even have to lift your head to look for the box -- you just reach in front of you and it's there.  But Bill said some things to me that no one else had.  First, he wanted to emphasize to me that at any time if I wanted to stop the proceedings he would do so.  No questions asked.  He told me of several "almost" clients that in spite of the worst odds had managed to patch things up and stay married.  He hoped the same for me.  He then asked me to do one thing. He asked me simply to take a deep breath and call me after the summer when I had had a couple of months to think about things.  If I still wanted to proceed with the divorce, he would be right there.  There was no need to rush, he told me, divorce was a long and expensive process.  Don't rush.  In the meantime, he advised me to start pulling together as much financial information as possible, and at that I started blubbering all over again.  "What's wrong now?"  he wanted to know -- was the money all gone?  No, I finally had to admit that maybe I hadn't been the perfect wife after all.  I was terrible at handling money and that I had wasted a small fortune on pretty clothes.  I was so ashamed!  "That's it?That's the big dirty secret?" he bellowed. "Yes."  He took one look at me, chuckled a little bit, and leaned right across his desk and said, "kid, you're gonna need 'em."  I couldn't help myself; I really liked him.  

Sadly, by mid-August things had deteriorated so much with my husband that I sent Bill's retainer agreement and payment back to him by FedEx.  I once told my husband that I would have traded every friendship away knowing the integrity of our marriage.  I couldn't have been more wrong and my heart couldn't have been more broken.  But I couldn't make that mistake with my lawyer.  I had to be able to trust him and he had to be good.  Really good.  Not long after, when I told my husband that I had hired Bill, he went into a rage that I hadn't hired the nice family man and grandfather I had described to him.  His attorney had told him that Bill was one of the toughest, most relentless S.O.B. trial attorneys in the city.  A pit bull.  I only knew one thing.  I was in love again.   

KAREN:  

 So, how DO you go about finding a lawyer?  The first place to start is with those very attorneys I indicated in my previous post (#1 of 4) -- the guy who handled your real estate closing, your cousin's husband the patent attorney, etc. -- with whom you have dealt before, but who shouldn't represent you in your divorce.  In fact, they almost certainly won't want to represent you in your divorce, and will be relieved to refer you to colleagues in the matrimonial field.  If you have friends who have been divorced, ask them if they were satisfied with their attorney and obtain names that way as well.  If you see a therapist, ask her for a referral.  (The divorce rate being what it is, mental health professionals often know of divorce attorneys through other patients or from couples they have counseled.)  Most local bar associations will also be able to give you a list of attorneys in a particular specialty.  Finally, you will also be able to use online resources such as lawyers.com or martindalehubbell.com to come up with a list of divorce specialists in your area.  

Once you have gathered the names of three to five reputable divorce attorneys, call and make appointments for initial consultations.  This should give you enough of a cross-section of the local matrimonial bar for you to give yourself a choice, without interviewing so many that they all become a blur.  Yes, there is a well-known tactic (employed by no less than Tony Soprano during Season Five of the Sopranos, when he and Carmela have separated) in which one spouse interviews literally every high-powered divorce lawyer in town, for the purpose of "conflicting out" the other spouse from retaining any of those attorneys.  (Once one spouse has interviewed an attorney, thus revealing private, confidential information, that attorney cannot ethically even meet with the other spouse.  That is why, when you call to make an appointment, you are asked the name of your spouse.  It is for the purpose of the law firm performing a "conflicts check" before you come in.)  I would not, in any event, recommend this tactic.  It's transparent; it's time-consuming; and it's expensive (you have to pay for all those consultations), and at the end of the day it's more important that you focus your energies on hiring an attorney because you trust him and have confidence in his abilities, rather than trying to outwit your spouse.  

  Divorce attorneys are quite used to the idea that people "shop" for representation and they will understand that at the initial consultation you are not necessarily ready to make a commitment to hire them.  However, the initial consultation is not free.  I have always been surprised at the number of people who consult me and are taken aback that I charge for the time I expend at the initial consultation, at my usual hourly rate. I finally realized that this is because so many people see the subway ads and late-night television commercials for personal injury attorneys, which always trumpet the fact that "the initial consultation is FREE!"  That is because personal injury attorneys work on a contingency basis, receiving a percentage of the monetary award the secure for their clients; that is NOT how most other attorneys, including divorce lawyers, are compensated.  Most attorneys sell their time for a living, and they are not going to give it away for free.  Would you go to a doctor for a consultation and expect her not to charge you?  No, of course you wouldn't.  This is no different. 

Ideally,  you should come prepared at the initial consultation to discuss the following matters:

        *A general marital history, including any concerns you may have concerning child custody, grounds for divorce, and spousal abuse.  

        *The existence of any prenuptial agreement between you and your spouse. 

        *Your and your spouse's income. 

        *Your family's assets, whether they are in your name or your spouse's.  Title is often irrelevant to the determination of what constitutes marital property, so just because you have kept an account in your own name, or because the house is titled in your husband's name, doesn't mean that those assets aren't marital property subject to division.  Try to be thorough, and include on your list every asset, including your home (or homes), interests in businesses or professional practices, bank accounts, securities accounts, retirement accounts, and personal property such as antiques, jewelry, etc. 

        *Your liabilities, including the extent to which your home is encumbered by a mortgage or home equity line.  

        *The extent to which your assets are derived from potential "separate property" sources, i.e., property you owned prior to the marriage, or property you inherited or were gifted by someone other than your spouse.  

        *Your monthly budget -- i.e., how much money it takes to sustain your normal marital lifestyle, including everything from housing and utilities to private school tuition for your children, to medical expenses to groceries to insurance to entertainment expenses.  

Note that I said that you would "IDEALLY" come prepared to discuss these issues.  Many people, in particular the non-monied spouse (often the wife) have not had access to income tax returns, bank statements and the like, or, more likely, simply have not paid attention to such matters. 

(More on this in Chapter 3.)  The attorneys you consult will be quite used to clients who have only partial knowledge of the family finances.  Part of the attorney's job during your divorce proceeding will be to ferret out that information, but obviously, to the extent you can provide your prospective attorney with more rather than less information at the initial interview the better he or she will be able to advise you as to the probable outcome.  

During the initial consultation, the attorney likely will conduct an "intake" interview (much like a new doctor has you fill out a medical history at your first visit), explain in general terms the law applicable to your case, and will give you his or her viewpoint as to how the case should be pursued.  You will also be given ample opportunity to ask questions.  Here is a sample list, by no means exhaustive, of questions you might want to ask: 

        *Does the fact that my spouse had an affair and/or is an alcoholic and/or is physically abusive impact the child custody issues or financial issues in this case?  

        *What do you think the likelihood is of my case settling? 

        *Do you think we have to litigate?

        *Do you yourself litigate, or do you refer those matters to trial counsel?

        *How long will this process likely take, both if we pursue settlement, or if we litigate? 

        *How much do you think this will cost in terms of legal fees and expert fees?      

        *What do you see as my financial entitlements or obligations?

        *My spouse won't move out of the house.  Are we going to have to live together throughout this process, or is there some way I can get him/her out?

        *Will I get custody of our children?  How much time will they spend with each of us after the divorce? 

        *After the divorce, I want to be able to relocate to my hometown where my family will be able to help out with the kids.  Is that going to be an option for me? 

        *How will we handle the finances while this matter is pending? Who will pay the bills? 

        *What other attorneys in the office will be working on my case?  May I meet them today?

        *Do you know my spouse's attorney?  (Oftentimes, one spouse "lawyers up" before the other, so you may well know the name of your spouse's attorney at the time of your initial consultation.)  Do you work well with him/her?

        *What are your hourly rates?  What is your retainer?  (Keep in mind that once you hire an attorney, she must enter into a full-blown retainer agreement with you that sets forth in detail the terms of her representation, including the hourly rates of every attorney who will work on your case, the amount of the retainer, etc.)

There are also observations that you should be making during your initial consultation, including:

        *Am I comfortable with this person?  Do they seem sensitive to my personal plight as well as knowledgeable about the law?

        *Am I being treated with respect?

        *Are my questions being answered without me being made to feel ignorant?

        *Is the attorney taking detailed notes?  Does he/she seem organized?

You should take notes during the initial consultation.  You are being imparted a huge amount of information, and although you think you will remember it all, you won't, particularly when you are interviewing a number of lawyers and trying to distinguish among them. 

After you have interviewed a few attorneys, it's time to make a choice and hire one, and sometimes that choice can be a difficult one.  Keep in mind that, human nature being what it is, it is tempting to go with the lawyer who boasts, "we're gonna take him to the cleaners!" or "we're gonna kill the bastard in court."  THIS IS NEVER A GOOD SIGN.  It smacks of someone who is telling you what you want to hear in order to sign up a new client, rather than someone who is giving serious, dispassionate professional consideration to your case.  Yes, we all know that YOU would like to rip out your spouse's pancreas with your bare hands in retaliation for all the hurt, betrayal, and humiliation you've suffered, and, believe me, if the lawyer were in your shoes, he or she would want to do the same thing.  But here's the thing:  the lawyer isn't in your shoes. The bottom line is that you should hire the lawyer in whom you have the most professional confidence, and not the lawyer who articulates most colorfully the revenge fantasies that float through your mind.  

One final word: it is imperative that you be absolutely truthful during your intial consultation and throughout your relationship with your attorney.  Don't be too "embarrassed"  to reveal sexual or financial peccadilloes.  Remember, this person is not your maiden great-aunt or your son's sweet young nursery school teacher; they are professionals who have pretty much "heard it all."  They are unlikely to be shocked by anything you have to tell them.  If you hold back, the attorney will not be able to give you appropriate legal advice.  SO:  Affair(s) with the pool boy/au pair/online dominatrix?    Drug use?  Porn addiction?  Tax fraud?  Two words:  Fess up! 

Chapter III: Gathering Your Financial Information

THIS CHAPTER NOT AVAILABLE ONLINE.  

Chapter IV: What Do You Mean, You're Not Moving Out?

KAREN:  

Something that comes as a nasty shock to many estranged spouses is that neither party has a superior right to occupy the marital residence while a divorce action is pending.  Many a female client, in particular, has expressed to me the notion that "the man is supposed to be a gentleman and move out."  To this, I say:  Was he a "gentleman" when he was sleeping with the au pair?  Was he a "gentleman" when he called you a "stupid b--ch" during that heated argument at the country club dinner dance?  Was he a "gentleman" when he purchased his girlfriend a Van Cleef & Arpels bracelet for Christmas (the same one he got you the year before)?  No, no, and no.  Thus, why do you think that he is suddenly going to become a "gentleman" now that you are getting divorced?  

 

Most attorneys in this field advise their clients NOT to move out until, at very least, they have an arrangement in place concerning access to their children.  If a party to a divorce moves out before agreeing to a temporary access (i.e., "visitation") schedule, they risk having their spouse withhold access to the children as leverage.  Of course, one can always go to court ("make a motion") to fix a temporary schedule for the duration of the divorce case, but that adds to the angst and, needless to say, the expense of the process.  

Another reason attorneys advice their clients not to move out is that in most cases, moving out is exactly what one's spouse WANTS one to do -- in fact, they can't wait to get rid of you!  Thus, the theory goes, you should stay put in the marital residence, moving into a guest room or onto the livingroom couch if your spouse refuses to decamp from the marital bedroom.  While you won't be happy, neither will your spouse, and thus pressure is exerted to bring the matter to an end.  This is not, however, a healthy situation for either party or for the children, and, as often as not, doesn't speed things up at all.  (If Elaine's story is any precedent, it may slow things down!)  

You cannot force your spouse to move out unless they have been violent or threatening towards you. The only other circumstance in which a court (in New York, at least) will award one spouse "exclusive occupancy" of the marital home during the pendency of an action is when one spouse has already moved out and established another residence.  This applies, for example, when a husband moves out and into an apartment with his girlfriend or otherwise, and then thinks he can come and go at will from the marital home to see the children, retrieve his golf clubs, etc.  Wrong.  Once he's out, he's out.  

 

    Of course, one of the factors at play, at least in New York City with its astronomical housing costs, (and certainly during these tough economic times) is that many couples simply can't afford to maintain separate residences until they actually receive their share of the equitable distribution of the assets.  This is very much a factor in "middle-class" divorces.  In one case in which I was involved some time ago, a couple had purchased their large Central Park West cooperative apartment in the 1970s when even young professional couples could afford to live there.  Twenty-five years later, the husband was still practicing law as a solo practitioner, the wife was a homemaker, and their apartment was worth millions.  It was their largest single asset, they were bitterly estranged, and neither of them was willing to move out while the litigation was pending.  The husband decided, as part of his tactics, to claim that his law practice was languishing and he could no longer afford to maintain his midtown office space. He moved his operation into the spacious dining room of the marital residence -- secretary, Xerox machine, filing cabinets, and all, and began seeing his clients there.  He figured that the wife would be so annoyed by this intrusion into their home that she would be driven out into some small rental apartment or would capitulate to his settlement proposal.  He miscalculated badly, for by Day #2 of this arrangement, the wife simply began walking around the apartment topless, much to the dismay of her husband's secretary and clients.  The husband suddenly found that he could afford office space, after all, and they continued to live together for the better part of another year until the matter was finally settled.  

    The bottom line is that you have to be prepared to live with your spouse "for the duration," as daunting a prospect as that may be.  

ELAINE:  

    You would have liked my (our) house  We had bought it after endless hours of looking and many hours of discussions concerning the practicalities of living in New York City without a doorman and without the security of a large apartment building.  Armed with listings from our real estate broker, I would set out on my bike each day and check out every townhouse that was for sale in Manhattan.  This might seem like a crazy approach to buying real estate, but I had determined that it would be easier on everyone, including me, if I surveyed the weekly listings by bike before I scheduled a formal appointment.  I had my hopes dashed at least a dozen times, and got too excited about the "amazing diamond in the rough that needs only a little TLC," only to find out that it was located right next to a crack house.  OK, I'm exaggerating a bit, but not much.  

 

    So I pedaled on and on without much success.  By the time the kids were out of school, I had pretty much given up on finding our dream house, and packed us up for our annual summer holiday in Bermuda.I knew it was a reach for us financially (even with my husband's Wall Street income), but I desperately wanted to have our own home.  I was sick of apartments.  I was craving the privacy that a single-family home represented and I thought that if given half the chance I could even create a little garden.  That would be nice.  Right girls?  A garden.  We could even get a dog.  I already had a name picked out just in case.  I put my bike away and the girls and I left the city for the summer. 

 

    You must be thinking, "boo-hoo, she couldn't find her dream house."  Believe me, I was looking at major dumps that would need to be gutted and renovated and we wouldn't be able to afford it all at once, unlike most of the showplace renovations on the Upper East Side.  But it happened.  I was sitting on the beach playing with the girls when I suddenly realized that one of the houses I had dismissed out of hand was OUR house.  I called my husband, who was still back in New York, in a panic and begged him to go and look at it.  A week earlier I had told him that I had hated the house and not to bother; now I was pleading with him to go see it.  He did, and this is what he reported back to me:  "there is not enough aspirin manufactured in the entire world that would make me buy that house."  I was crushed.  Maybe he was right.  All summer long I couldn't get that house out of my head and told him so.  When we arrived back after Labor Day he agreed to go look at it again and somehow the house looked different to him.  He could see all the possibilities.  The house wasn't a dump, it just needed a family again.  I pulled out one of my stock lines, and told him that if we could buy the house I would never ask for anything, ever again, as long as I lived.  I did that a lot.  We bought the house and that's when I knew he really, really loved me.  I told everybody.  

     I guess I bought the fairy tale.  Husband, children, house, garden, and, yup, we even got the dog.  ("Jack," by the way.)  Several years later, after the anonymous midnight phone call and my husband finally admitting to his affair, I figured that he would do the gentlemanly thing and move out, just like all of Karen's and Bill's clients probably thought when their world first imploded.  Just like the movies.   Just like the famous couple who had once lived on our block in the 1960s.  When the wife found out that her husband was having an affair, he came home late one night to find that his bags had been packed and were waiting on the front steps of their beautiful town house.  He was furious and although he banged on the door and pleaded to be let inside, his wife would only respond by throwing more of his belongings out of the window.  The entire neighborhood heard everything and watched for hours from behind their curtains. He finally fell asleep on the stoop and by morning he had given up, called his lawyer and had moved to a hotel.  I heard this story at the closing when we bought the house, when the seller was reminiscing about his family's life on this beautiful little block just off Park Avenue.  I remembered how we all laughed at his anecdote.  He handed us the keys and told us how good it felt that such a nice family would be living there.  Right.  

    In our case, though, there would be no civilized, "daddy is going to stay in a hotel for little while," or "daddy and mummy still love you but we're not going to be married anymore and daddy's moving to his own place."  Nope, daddy wasn't going to budge, period.  Whether daddy got advice from a lawyer to dig in, or was in such deep denial, it didn't matter -- he was staying.  To any right-thinking person, living under the same roof for four years while negotiating the inherent land mines of divorce would be a made-in-hell recipe for either homicide or insanity.  It was almost both.  

    Although my husband did at least move out of the marital bedroom to the spare room, the rest of our spacious, lovingly-decorated house felt like no-man's land.  Except for sleeping, I more or less moved to our little guest quarters on the fifth floor (a space I had set up as sort of an in-law apartment for when our extended families visited during the holidays) and tried to conduct my life as normally as I could.  I drove the girls to and from school every day and would cook dinner in the little efficiency kitchen.  Sometimes, this routine gave us all a feeling that nothing was really changing, that our little family wasn't completely fractured, even if we were living on separate floors.  Tomorrow would be another day of more of the same.  It was almost peaceful.  Until...

    Our good friends' daughter was getting married and I had agreed many months earlier to host a luncheon the day after the wedding for all of their out of town guests.  It would be beautiful.  The garden looked lovely, too.  It was all perfect and I needed only to attend to one very big detail.  I needed to tell my husband that our friends had "dis-invited" him from the wedding and he wouldn't be attending the luncheon, either.  He would have to make himself scarce and go off for the day and play golf.  I promised that if he would do this for me we could take the girls out to dinner as a family that evening, something we hadn't done in weeks.  He was upset, but seemed to accept that it was the best thing to do under such awkward circumstances.  I had promised him that I would tell anyone who inquired that he was stuck on the west coast on business and was disappointed not to be at the celebration.  We struck a deal and I thought that maybe this was an indicator that we could be one of those civilized couples who divorce and even repair their friendship. You know -- just like in the movies.  

    That day, the luncheon guests came and went, and the caterers I had hired were just about to clear out when my husband came through the door with his golf clubs.  I think about this now, and wonder, "how did I miss the warning signs?"  He had a look that I didn't quite recognize and I chalked it up to embarrassment.  One of the catering staff, an older Irish woman, asked me if I would like her to stay.  Huh?  She thought that "himself" didn't look right and she was very concerned to be leaving me and our daughters alone with him.  How did she know?  What did she see?  Minutes later I would regret that I didn't take her up on her offer.  

    While our girls were in their bedroom on the fourth floor getting ready to go out for our family dinner, my husband began to disintegrate before my eyes.  He paced back and forth and back and forth in the kitchen and then I saw that as he began to speak he was almost drooling. His face had gone slack and if it were possible, he looked like an entirely different person.  He began to scream how humiliated he was not to have been included at the wedding and how mortified he felt not to be able to be back in his own home until the guests left.  He slammed the kitchen door shut and although I began to get a little nervous, at his point he was just shouting and I assumed that he probably didn't want the girls to hear.  He had always been a very quiet man, very controlled, and never once had I ever heard him raise his voice.  He would every once in a while have some extremely choice words, along with some pretty vulgar expression, for a business rival, but they were never ever directed at me. Suddenly, however, I was the deal going south, the client he couldn't control, and in a moment his fist went past my face into the plaster wall.  In the next moment, he had pulled a knife from the wooden block on the counter and began to waive it in front of my face and his own.  "Is this what you want me to do?"  he demanded.  He placed the knife to his own throat and then back at mine.  I was too far from the door to make a dash for it, but I recoiled and fell backwards onto the floor.  He came down over me, put his knee on my chest, and put the knife to my throat.  I cried for him to let me go, but I could barely breathe.  

    At that moment, our older daughter, then only twelve, came through the kitchen door and he got up.  As I struggled to my feet, he flung the knife to the counter and shouted at our daughter to leave, that mummy and daddy were just having a disagreement, but she held her ground.  She looked at me and I mouthed "stay."  Her younger sister arrived on the scene and we three clung to each other in tear as my husband continued his ranting and pacing.  I attempted to go for the phone, but he shoved me away.  I finally had my chance when he finally walked out of the kitchen and into the adjacent hallway.  Our younger daughter was nearly hysterical, but I was able to use the phone, as my husband couldn't hear over her sobbing.  I should have called 911 -- which is what you should do if anything like this ever happens to you -- but I didn't.  Instead, I called my friends Maureen and Jim who lived just around the corner, and within minutes Jim and another male friend who had been at their home arrived at the door.  They were both worried about our staying in the house, and Jim managed to persuade my husband to leave, if only for a few hours, to cool down.  Jim still thought I should call the police, but the fear of any further retribution paralyzed me from doing anything.  

    This event changed everything for us.  Violence had never been a feature of our marriage and now I was so shaken with disbelief.  I was not an abused housewife.  Was I?  The answer is NO.  But I was now dealing with someone who bore no resemblance to my quiet husband of fifteen years, someone who clearly had no control over his emotions and was clearly in free fall.  It hadn't occurred to me that telling him that I would not stay in our marriage after discovering his four-year affair would have this effect on him.  For weeks he had been losing his temper with increasing frequency and he was using the kind of language he usually reserved for his tough-guy role in business.  During the many arguments we had over his affair, he was not only beginning to push me when he became angry, he would thrust his chest out and use his entire body to prevent me from leaving the room.  All the warning signs were beginning to emerge and I hadn't picked up on any of it.  The girls had even begun to refer to our little fifth-floor guest suite as the "panic room," after a movie that was popular at the time.  I was very lucky that night and really, this incident was the turning point for me.  I had only learned of his affair a few weeks earlier, and was still trying to digest what it all meant.  I was very clearly experiencing the "what do I do?" stage, right before hiring a lawyer.  

    There would be other incidents that summer, but I rationalized very foolishly that I could handle it as long as it was directed at me and not the girls.  Not taking legal action at this point was one of the most irresponsible and stupid things I did during the long process of the divorce.  Even after another terrifying incident later that summer in our rental house in Bermuda, I still didn't want my newly-hired lawyers to take action to try and get him ejected from the New York house, although I now realize that if I had done so at that point, I might well have been successful.  But I stalled, thinking that surely, he's going to WANT to leave to escape this horrible tension and have his own space. Then the horror of 9/11 occurred and we were all thrown off balance.  More time passed, and by then, his lawyers must have read him the riot act, telling him to get himself under control, and he regained his composure.  He wasn't going anywhere further than the spare bedroom "for the duration."  

    I've told other parts of this saga in other chapters (see Chapter V about my notions of the "polite" way to start a divorce litigation), so I will spare you the rest of the details at this point.  Suffice it to say that we lived together in that townhouse -- our beautiful dream house right off of, yes, Park Avenue -- for the next three and a half years until we finally came to an overall settlement of the divorce and the house was sold. Fairy tale over.  

A FULL VERSION OF THIS CHAPTER WILL APPEAR IN OUR BOOK, AVAILABLE IN JULY FROM AMAZON.COM.