Two Divorce Lawyers Watch "Divorce": Ep. 2

What the show gets right and wrong about divorce in New York

by Marcy Katz and Tom Kretchmar

“Best interests of the children” — the child custody principle we introduced in last week’s discussion of the “Divorce” series premiere — is supposed to be sacrosanct, and something everyone involved in a divorce seeks to promote. In reality as well as the second episode of “Divorce,” the concept is often perverted by one parent (in this case, Robert) as a cover for selfish or vengeful behavior. In the same way many people think prefacing a comment with “no offense” allows them to deliver insult without consequence, parents in custody battles often think that so long as they invoke “best interests,” they have carte blanche to do whatever they want, no matter how detrimental and awful it may be.

For example, if one parent has primary custody of the children during the pendency of a divorce, you might find him or her over-enrolling the children in extracurricular activities, under the guise of keeping the children optimally enriched, with the goal of deliberately impacting the time slots when the other spouse would otherwise have visitation time. Children aren’t necessarily optimally enriched by hyper-abundant extracurricular activities when it’s at the expense of their relationship with the noncustodial parent.

Robert engaged in a vengeful perversion of best interests twice in the second episode; both instances were borderline cartoonish. First, Robert uses the best interests of the children as an excuse for taking Frances’s clearing-of-the-air conversation outside of their house, and thus out of the children’s earshot, only to lock the front door behind her and then, through the door, clamor at her about her affair with Julian while the children puttered around somewhere behind him. An almost equally farcical weaponizing of “best interests” occurs when Robert tells Frances he’s going to pick the children up at school and unilaterally disclose the circumstances of the divorce (including Frances’s infidelity), since that would be “better than them hearing it on the street.” This results in a literal race between Robert and Frances to get to the school first. Notably, Frances isn’t racing for a chance to tell her side of the story, but to stop Robert from telling them anything altogether.

Robert’s haphazard lip service to best interests continues when Frances tries once again to clear the air with him. After Frances pleads that she doesn’t want to break up the family, Robert spontaneously exhorts, “This has been very alarming for the children.” Shortly thereafter, in the middle of a back and forth about their workdays, Robert interrupts Frances with a non-sequitur about not using the children as pawns, claiming the most important thing is to “think of the children first” and not put them “through any ugliness or chaos.” What’s really bothering him is his belief that Frances had bought the children a dog to make them like her more, undermining his alienation campaign against her. (The dog had in fact entered the picture because Frances’s friend Diane asked her to take care of it.)

As ridiculous as Robert’s conduct has been, none of it is really poisonous enough (yet) to have any real impact on the forthcoming divorce proceedings. To move that needle with shenanigans like these, Robert’s specific acts would have to have had a greater actual impact. But his actions and words may give us some insight into where his head’s at. He seems to have done enough homework about the mechanics of the divorce process to be motivated to convince the world that he is better suited than his wife to prioritize the children’s best interests. But does he really understand what that really means? We know from Robert’s cursory Google search of Julian at the end of the episode (“Julian Professor Columbia Granola”) that he’s lightly Internet-proficient, and at one point in the episode, he tells Frances that he is “well aware of his rights.” He may lack the discipline (or character) to commit to the course of conduct he really should be pursuing, but it seems he’s at least figured out that he’s supposed to be laying a foundation for a legal case that he’s the better parent.

Episode two also offers our first glimpse into Robert and Frances’s financial story. We find out that Frances is looking to open an art gallery on the local Main Street (in what appears to be Hastings-on-Hudson). Frances tells the real estate broker who’s helping her find a gallery space that she’s “waiting for Robert’s business to pick up” before she signs any lease, which gives us our first hint that Robert’s construction company is not doing well. With what little information we have about Robert and Frances’s finances so far, we have fewer inferences to draw than we do questions to ask: who, of the two of them, has historically had the higher income? Who’s earning more right now? Are they each business owners? If so, do they own their businesses outright, or do they have partners? When did they start their businesses — before the marriage, or during the marriage? These questions, and many others, will all have an impact on how their businesses and other assets ultimately get apportioned and distributed, and will also impact any spousal support and child support that gets awarded in their divorce.

In New York divorce law, the apportionment of “marital property” — i.e., property that the parties accumulate during their marriage — is referred to as “equitable distribution.” (We will undoubtedly have the opportunity to discuss the distinction between “marital property” and its counterpart, “separate property,” in future writing. The basic distinction is that “separate property” is not subject to division by equitable distribution. Generally speaking this primarily includes inheritances and all property owned by a party prior to the marriage, so long as it is not “commingled” with marital property during the course of the marriage. Commingling is another complicated topic we’ll get to.) Equitable distribution does not mean equal distribution; marital property is not automatically split down the middle and distributed half and half. Instead, New York law provides a laundry list of specific factors that may be accounted for in order to determine the equitable (i.e., fair) distribution of marital property in a given case, including, notably:

• The income and property of each spouse at the time of the marriage, and at the outset of the divorce;
• The length of the marriage and the age and health of both spouses;
• If there are minor children, the need of the spouse who has custody of the children to live in the marital residence and to use or own its contents;
• Any spousal support that will be awarded;
• The probable future financial circumstances of each spouse;
• The impossibility or difficulty of determining the value of certain assets, like interests in a business, and whether one spouse should be awarded the business in its entirety so it can be run without interference by the other spouse;
• Whether either spouse has squandered or secreted away any marital property while the divorce was ongoing.

Even after considering these and other factors, New York law specifically entitles a court to take into account any other factor it deems relevant in arriving at an equitable distribution of the marital property. The truth is that even though lots of technical analysis goes into the negotiation or litigation of equitable distribution (including substantial use of appraisers and forensic accountants, where applicable), there’s no set formula and no mandatory roadmap that a court must follow when distributing marital property. Accordingly, there’s no true way to predict what conclusion a court will reach in making its equitable distribution determination. As a result, divorce lawyers work as hard and as collaboratively as circumstances allow to achieve a resolution by negotiated settlement rather than through litigation. The hope is that both sides can, through collective experience and knowledge of the law, arrive at a result that both identify as being fair and within the boundaries of how things should ordinarily be expected to shake out after litigation, without having to have their clients suffer the expense and the gamble of leaving it entirely up to a court to decide.

Marcy Katz and Tom Kretchmar are New York divorce lawyers. They work at Chemtob, Moss & Forman, LLP, a matrimonial law firm based in midtown Manhattan.