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.