The Divorce Papers
Page 8
What I don’t get about civil litigation is the relative importance of things. In a criminal case, we fight tooth and nail over everything. It’s all trees, no forest. You never know what will persuade the jury or the judge to go your way. Is it the same here? Do I challenge everything the other side does? Do I bury them in motions and contempt orders? What do I let slide? What do I insist on?
Dr. Durkheim’s strategy seems to be to starve his wife into submission, so to speak, by closing the checking account and generally shutting off the funds. Should we make a motion for temporary support? Should I garnish his salary? Can you imagine how enraged he would be if we got a court order against him withholding temporary child support and alimony from his hospital salary? The thought of it makes me light-headed and giddy.
Kahn says in his letter that he is preparing an offer. Isn’t that a bit premature? Formal discovery hasn’t begun. Is Kahn assuming that he can proceed because Mrs. Durkheim has handled the family finances during the marriage? What do we do about possible hidden assets? Do we need to hire a private investigator? (Query: Are men who mess around more or less likely to hide assets than men who don’t mess around? Are the two pathologies related?)
Kahn also says in his letter that he doesn’t expect the negotiations to be complicated or protracted in light of both parties’ “substantial economic resources.” Is that code for no alimony? I can understand a marriage ending; what I can’t understand is the way people end it. Doesn’t the doctor recognize any obligation to his wife? She left New York and gave up her job, her friends, her 4 rms riv vu so he could take his great big job at Mather. My mother always says, never make sacrifices for your husband or children; they hold it against you forever. I say we ask for seven fat years of alimony, to compensate for the seven lean years she spent in New Salem. This may be known as the Pharaoh’s Dream doctrine of divorce.
Mrs. Durkheim says her husband wants the St. Cloud Street house. I anticipate he will offer to give up any claims he might have to the Martha’s Vineyard house in return. That strikes me as untenable. He has no claim to the Vineyard house. First of all, Mrs. Durkheim inherited her share of the house before her marriage. Second, she and her father hold the house in trust as tenants in the entirety, which means neither can sell or otherwise transfer his or her share to anyone else; the survivor takes all. If the doctor wants a share, he’ll have to stick it out until his father-in-law dies. Correct?
Commonwealth of Narragansett
Family Court
County: Tyler Docket No: 99-27
Acceptance of Service
Domestic Relations Summons
Daniel E. Durkheim Plaintiff
v.
Maria M. Durkheim Defendant
I, the above-named defendant: Maria M. Durkheim accept service of this summons and understand that judgment may be rendered against me in accordance with the complaint, a copy of which I have received:
Date: April 5, 1999
Signature of Defendant: Maria M. Durkheim
The above-name defendant: Maria M. Durkheim
swears that the acceptance of service was his free act and deed.
Date: April 5, 1999
Notary Public: Hannah Smith, Traynor, Hand, Wyzanski
Signature of Notary Public: Hannah Smith
Commission Expiration Date: November 1, 2001
Notice of Appearance
Complaint for Divorce
The above-named defendant: Maria M. Durkheim has retained as attorneys in this action:
David Greaves and Anne Sophie Diehl
Traynor, Hand, Wyzanski
222 Church Street
New Salem, NA 06555
Date: April 5, 1999
Signature of defendant: Maria M. Durkheim
Signature of attorney: Anne Sophie Diehl
Commonwealth of Narragansett
Family Court
County: Tyler Docket No: 99-27
Answer to Complaint for Divorce
Daniel E. Durkheim Plaintiff
v.
Maria M. Durkheim Defendant
Now comes defendant Maria M. Durkheim by her attorneys, and answers plaintiff’s complaint for divorce, dated February 15, 1999 as follows:
1. Defendant admits the allegations contained in Paragraphs 1, 2, 3 and 4.
2. Defendant does not have sufficient information to admit or deny the allegations contained in Paragraph 5 and leaves plaintiff to his proof.
3. Wherefore, defendant requests that this Court dismiss plaintiff’s complaint and order plaintiff to pay her attorney’s fees and costs necessitated to defend this action.
The defendant, by her attorneys,
Traynor, Hand, Wyzanski
222 Church Street
New Salem, NA 06555
(393) 876-5678
Signature of Attorney: Anne Sophie Diehl, Traynor, Hand, Wyzanski
Date: April 5, 1999
Certificate of Service
I, Anne Sophie Diehl, Esquire, hereby certify that on the 5th day of April 1999, I caused a copy of the foregoing defendant’s answer to plaintiff’s complaint for divorce to be served on plaintiff’s attorney by mailing a copy, first class, postage prepaid, to: Ray Kahn, 46 Broadway, New Salem, NA 06555.
Signature of attorney: Anne Sophie Diehl, Traynor, Hand, Wyzanski
TRAYNOR, HAND, WYZANSKI
222 CHURCH STREET
NEW SALEM, NARRAGANSETT 06555
(393) 876-5678
MEMORANDUM
Attorney Work Product
From: David Greaves
To: Sophie Diehl
RE: Matter of Durkheim
Date: April 5, 1999
Attachments: Martins v. Martins, 224 Nar. 887 (1955)
Sophie—
The good news is: you’re hooked on the case; you’re asking the right questions; you’re thinking like a divorce lawyer. Also, you did an excellent job with the intake. That’s the good news.
The bad news is: you’re free-associating in your memo, if you can call it a memo; you may be thinking like a lawyer, but you’re writing like a self-indulgent alternative-newspaper feature writer. I understand that you are looking for help; this is all new to you. But you aren’t a legal neophyte. You can ask questions in an orderly way. You need to get a grip, Sophie.
Re ¶1. The official documents are fine. The reason you ask the court to dismiss the action in the Answer is because (1) Mrs. Durkheim didn’t concede that the marriage was irretrievably broken; and (2) you didn’t file a cross complaint on behalf of Mrs. Durkheim against her husband. The logical conclusion, then, is that she doesn’t want a divorce, on either his terms or hers. Hence, she wants the marriage to continue. Of course, the marriage can’t continue if her husband is determined to get a divorce, so her Answer asking for a dismissal is a combination stalling action and warning shot to the other side.
Re ¶2. In your letter to Kahn, you could mention that the Notice of Automatic Orders should have been sent with the summons, but I’m not sure how much mileage you can get out of it. I don’t think you can push back the deadlines, since Mrs. Durkheim was instructed to respond to the summons and complaint by the Return Date and the Return Date is the date that triggers the deadlines. As for the legal advice he offered on the effect of the Automatic Orders, instead of reprimanding him, you might point out that they apply to his client as well. See notes below to ¶3. You can tell him that in the future, all correspondence should be sent to you and not to Mrs. Durkheim.
Re ¶3. Although he could simply have withdrawn all the funds or stopped making deposits, Dr. Durkheim should not have closed out the bank account without his wife’s consent. You should tell Mr. Kahn that if Dr. Durkheim does anything like that again (Kahn says in his letter that his client will take “other measures indicating a separation of property”), you will bring a contempt motion. This threat will let K&B know that you will not be pushed around. A contempt motion, even if it failed, would slow things down. And slowing things down is a way f
or Mrs. Durkheim to exercise leverage. Also, if Dr. Durkheim continues to take “measures indicating a separation of property” as a way to spur his wife on, he puts himself in the wrong in the event negotiations break down and the case goes before a judge. Our judges don’t like it when parties flagrantly violate the Automatic Orders. Mrs. Durkheim’s note to her husband doesn’t surprise me. Haven’t you read Cheever? We WASPs are perfectly capable of behaving badly, explosively, especially when we’re drunk but not exclusively.
Re ¶4. In a divorce, the lawyer’s job is to get the best agreement she can for her client. This means that you and Mrs. Durkheim must sit down and decide the bottom line. What does she need or want in terms of spousal support, child support, savings, property, etc. What is the least she will accept. What will she give up in exchange for other things she wants or needs. In many divorces, the parties fight over very small things—the talismans of the relationship. Keep your eye on the big picture, the forest. Your greatest advantage is Dr. Durkheim’s sense of urgency. He wants it done with. He also, apparently, wants the house, which gives you another strong negotiating tool.
Re ¶5. You might ask Mr. Kahn what arrangements Dr. Durkheim, as the family’s primary breadwinner (so old-fashioned a term these days), has made for paying household and other expenses, such as his daughter’s school fees, credit card debt, and the like. As things now stand, Dr. Durkheim doesn’t have to give his wife an allowance or any spending money, though she can withdraw funds, as can he, from their joint and separate accounts. Until one of them moves out or Mrs. Durkheim makes a motion for temporary support, Dr. Durkheim’s obligation is solely to provide the necessities. I refer you to Martins v. Martins, 224 Nar. 887 (1955), which despite its advanced age still provides the governing rule so long as spouses are living together, even if they are sleeping apart. I attach a copy of that case. I suspect that Dr. Durkheim’s next move, on advice of counsel, will be to close the joint credit card accounts and dismiss the housekeeper. This will serve two purposes: (1) it will, as you say, “starve her out”; and (2) it will establish a low threshold of support, one that includes only the necessities. If he does that, you will have to bring a contempt motion, to let him know that you will not allow him to dictate terms this way. You might want to begin drafting such a motion, to have it on hand to wave in front of Kahn. You might also contemplate making a motion for temporary support—or at least let Kahn know you are contemplating such a motion. Kahn is a bully and a coward, and he hates to lose. He won’t go to court unless he thinks he will win—or unless his client insists. If you are very clear in your first letter about what you will and will not accept, he will get the message. His manner will remain aggressive and offensive, but his position will be flexible—if only so as to insure that at the end he will look like he’s won. Throw him a sop; give him a small victory at a crucial juncture, like the house perhaps. Lose a battle, win the war.
Re ¶6. My guess is Kahn is preparing a lowball offer, his idea of a warning shot. He is free to do it anytime he wants to, and we are free to ignore it until discovery is completed, which we may or may not want to do. We may have to bring in a private investigator but not yet. Let’s wait and see what information they turn over during discovery. The firm has one on retainer. (You’ll like him; he’s out of Damon Runyon, the kind of man a criminal lawyer properly appreciates. And he’ll love you. Civil law cases pay his bills; criminal cases make his heart race.) (Answer to Query: In my experience, adulterers do not hide assets more than other men. And only hiding assets is pathological; adultery is normal.)
Re ¶7. Of course, Mrs. Durkheim should ask for alimony, or spousal support as it is also called. The law does not expect the wealthy parents of a woman to support her after divorce. Your seven-year figure has a kind of compelling logic; by accompanying her husband, she lost not only substantial income but also the opportunity for career and salary advancement. In her current state, with an M.Phil., she is not readily employable as a university instructor, and her current salary, after taxes, wouldn’t even pay the rent of a two-bedroom apartment in New Salem. The question is: How much money does she have? I’m relying here on the intake interview, so the figures are rough. Both she and her husband have been receiving $10,000/year from her father. After 16 years, that should be with interest at least $300,000 each. Kahn might propose transferring to her Dr. Durkheim’s gift fund, which would give her a total of $600,000+ (I’m guessing here; there’s probably a good deal more), and forgoing alimony. At a conservative 8% a year, she would have $48,000/year, which the court, with child support, might consider adequate, though not at the level she was accustomed to. There’s $900,000 in their various accounts (not including his pension or the 401[k]), so if she got back her father’s money, he’d still have some savings. I’m not recommending this—but identifying it as a possible bottommost bottom-line position. Of course, she should get half the pension fund and half the 401(k) in addition.
The thing about alimony, which Dr. Durkheim might find attractive, is that it’s tax deductible to him, the payer, and taxable to his wife, the payee. Child support, on the other hand, is not tax deductible to the payer and in essence constitutes tax-free income to the payee. Prepare yourself for an offer with a low child support payment and some alimony to make up the difference. I can see them offering, say, $3,000/month in child support and $3,000/month in alimony. Mrs. Durkheim would do better with all $6,000 in child support, not only because of the tax considerations but also because of the later cutoff date. Dr. Durkheim will probably offer alimony only for three years, long enough for Mrs. Durkheim to get her Ph.D. Child support would run at least seven years, until Jane was 18. One last thing, the more money Mrs. Durkheim gets up front, the better off she is. Something like 70% of ex-husbands stop paying some if not all of their alimony and child support obligations at some point, and very, very few pay to the end. Ex-husbands don’t like paying their ex-wives, even if the money is for their children.
Re ¶8. Under Narragansett law, the Vineyard house is considered separate property. Mrs. Durkheim acquired it prior to her marriage. It is hers and hers alone, whether the tenancy is joint, in common, or in the entirety, whether it is owned in trust or outright. Mrs. Durkheim could of course voluntarily transfer an interest to her husband upon her father’s death, but no court would compel her. A legacy received during a marriage, such as the Honda Dr. Durkheim inherited on the death of his parents, is also considered separate property, though the rule is not so ironclad. We can be sports here. We’ll let him keep the car and also the $16,000 his parents left him. At this point, we should not bring up the Vineyard house. Let them bring it up. And they will.
Mrs. Durkheim cc’ed me on her letter. I shall speak to Fiona.
I have spent the last hour dictating this memo; it will probably take Hannah another 30 minutes to type it up. Then I’ll have to proof it; that’s another 15 minutes. We—I, that is—may have to swallow some of the cost. I shall see you are fully credited for the time you spend on the case. Since your time is cheaper than mine, think things through before committing pen to paper. The more disorganized your memos, the longer it will take me to respond to them.
No. 55-228
Martins v. Martins
Supreme Court of Narragansett
224 Nar. 887 (1955)
Cutler, Ch.J., delivered the opinion of the Court.
The issue before this Court goes to the heart of marriage and to the proper role of the State in regulating domestic relations between a husband and his wife. We have been asked by the parties here to determine the support obligations a husband owes the woman he is married to and living with. It is an issue with enormous ramifications bearing on the autonomy of the marital household and the privacy of the marital relationship.
Leo and Letitia Martins have been married for 39 years. They live three miles outside Pemberton in Berks County. Mr. Martins is 68 years old, his wife is 62. They have two grown children who are married and living in other states. Three year
s ago, Mr. Martins retired from National Construction, where he worked for 44 years as an electrician. Mrs. Martins has never worked outside the home. Mr. Martins receives an annual pension of $5,200 from National and an additional $2,600 from the Social Security Administration. His savings account at the Central Bay Bank has $9,000, earning 3% annual interest.
The Martins live in their own home purchased for $3,000 the year they were married. Title is in Mr. Martins’s name. He owns it free and clear, the mortgage having been paid off more than 15 years ago. Built in 1905, it is a two-story dwelling with an erratic coal furnace and an outside latrine, both of which are original to the house.
Most of the features of the house date to its construction, the notable exceptions being electrical lighting on the first floor and hot water, which is heated by a wood-burning kitchen stove, purchased at a sale close-out in 1930, six months after the Crash. There are no electrical outlets. They do not have a refrigerator—they have an icebox, perhaps the last extant one in Berks County—and their only radio is a shortwave radio constructed by their son for a Boy Scout badge. By current American standards, the house is primitive. Its current value, owing to its state of disrepair, is less than the original purchase price, though the land it sits on, 17 acres of prime farmland, was recently valued at $8,500.
The Martins do not farm the land but rent out the larger fields to a neighboring farmer. The rents bring in an additional $1,200 a year. Mrs. Martins raises chickens for their eggs, which she sells from a farm stand on the property. Her monthly net earnings from the eggs are approximately $20, which constitute her only discretionary income. Over the years, she has saved $1,400, which she keeps in a savings account, earning 3.5% interest, at Union Bank.
The furnishings are in keeping with the house. The marital bed, now occupied only by Mr. Martins, was purchased by the couple the year they married. The other furnishings were bought at fire sales and local auction houses during the Depression.