More About Divorce in America

GUESTS: Paula Seider, Adria Hillman
VTR: 4/12/86

I’m Richard Heffner, your host on THE OPEN MIND. Once again our subject is the effect that new approaches in divorce to what is yours, what is mine, what is ours, may have not only upon divorce in America, which occurs now more and more often, but also upon marriage and the family in our changing times. Now my guests today are two distinguished members of the matrimonial bar, Paula S. Seider and Adria S. Hillman. For some time now our legislatures and our courts have been changing the rules for divorce. They may end up changing them for marriage and for family life as well for with all the good will In the world such social engineering by legislators and judges alike designed to achieve fairness as marriage partners separate may prove less a boon than we anticipate. Marital assets. Equal or equitable distribution. Career assets. All of these newer concepts have the sharp, the warm sound of fairness about them. And yet sociologists who document the plight of those who have been set asunder say it isn’t necessarily so, and mischief often seems to accompany even the most elaborate schemes to balance the equities in divorce. Which leads me to ask my guests what they think the key to fairness must be as we end the clearly no longer so holy state of matrimony in each and every state of this union. So ladies, I really do want to ask that, and we’re dealing with a national audience. We don’t want to get bogged down in what may seem indecipherable to others differing from one state to the other. What do you individually think should be the basic objective in a divorce settlement? What do you think?

Seider: The basic objection as far as I’m concerned is to do whatever can best be done to accommodate equilibrium in the family. That’s easily said and not readily accomplished. Children are always the victims of these miserable problems between their parents. And if the parents can put aside their own sense of pain and anguish, if that be possible to accomplish for the child, hearing and holding the family together, ultimately a divorce settlement may be easier. What ends up happening is that the almighty dollar breaks up a family.

Heffner: How do you think the almighty dollar can be allocated in a way if you agree that the family or the children should be considered first?

Hillman: Well, I agree that the bottom line is green and that one of the problems with divorce is that equitable distribution is not fair. Women and children end up with one-half or less than one-half ordinarily, and women end up with children, and they have diminished capacity to enter the marketplace to earn a living. The biggest asset in most marriages is the career asset which the husband takes with him. Which is not shared. In most marriages there’s little maintenance. Usually short term. Child support awards average $25 a week, and this has contributed, according to the National Council on Economic Advisors, to the feminization of poverty. Disruption of marriage, divorce, is one of the leading factors leading to that national problem.

Heffner: Do you feel the same way?

Seider: I don’t concur in that, no. I think that clearly the breakup of a family is evidence unto itself that the two families cannot live as cheaply as one. But I believe that the laws that have been enacted since 1980 and which have not been honed down and continue to be honed down are providing far more equity for women than ever before. Of course it’s not enough. Nothing is ever enough for people who require more. But I think that in the sense of the husband taking his career with him and a family not sharing, I think…I think the law is just completely contrary to that and the cases so indicate it. Careers are being shared. Licenses are now being shared. Spouses are now in a position to receive far more than they ever did prior to the enactment of this new law.

Heffner: If you were to say, there is a disagreement here about quantity, but if you were to set that aside, do you see any conflict in your respective approaches in terms of what should be? What should be the objective of a divorce settlement? I mean should it be that the woman, for instance, comes out having been made whole by the divorce settlement? Is that your objective?

Hillman: Well, I think the objective is that the woman and invariably the children have to be able to live at a standard of living that is as close to the marital standard of living as the husband’s. Lenore Weitzman’s book which I recommend to everyone called The Divorce Revolution: The Unexpected Social and Economic Consequences for Women and Children in America demonstrates what’s happened in California. California is in the advent in the country in terms of new theories. No-fault. Joint custody. There they have mandated equal distribution. And the effects there in the year subsequent to marriage, man’s income goes up 40% and women and children’s goes down 73%. And that’s demonstrated. There are statistics about that. It seems to me that women and children have to be given an opportunity to live at a marital standard of living so that a woman can go out and try and reenter the job market.

Heffner: Excuse me. What do you mean by a marital standard of living if the marriage is over?

Hillman: Well, the husband goes out and he in the year subsequent to divorce he earns the amount equal to the marital assets. The wife leaves the marriage and she has the children. If she’s in the job market she’s at a lower level, part-time, has compromised her life for a commitment to marriage, a commitment to home, a commitment to family. As long as that compromise is in place, there has to be w ay in the dissolution of the marriage to protect that commitment, otherwise…I mean I advise people about to get married don’t give up your job, don’t be the primary caretaker of your children, you can’t afford it. Marriage is a bad investment for women. They don’t get a good rate of return when they get divorced.

Heffner: Would you give that advice?

Seider: I would not give that advice. I think, of course, there are times when this happens. Going back to what I said before there usually is not enough to maintain everybody’s standard of living. Of course if we’re talking of situations where we have monied people then there is enough. Wives and children frequently fare far better than they might have under other circumstances. But if you had a family where there are limited assets, there is no way one can live as one did. But do you say don’t get married? Don’t go out into the job market? Don’t do these things? Of course not.

Heffner: But what about this business of…did I understand you to say your advice is not to be the primary caretaker?

Hillman: Not to give up everything for your marriage. Not to go in and take as your career your children and your family. Because if you do that after 20 or 30 years of marriage and you try to go into court in New York in an equitable distribution state, where you have to prove that you are entitled because of that commitment to that career in the home, you will have a very hard time getting even 50%.

Seider: I totally disagree. I’m sorry. I didn’t mean to interrupt you, but I completely disagree with that.

Hillman: You think that women are getting 50% in this state?

Seider: We’re talking about marriages in excess of 25 years?

Hillman: Yes.

Seider: Absolutely they are. They absolutely are. And I think the statistics demonstrate that.

Hillman: They do not.

Heffner: What about the…what about this larger question, if you forgive me for characterizing it that way, of the relationship with our children? You were saying that in anticipation of what may ultimately happen to a marriage dissolution that we should have a different relationship between mothers and children than we traditionally have. Is that, do I understand that correctly?

Hillman: Well, it seems to me that that relationship…women have, in the past and still, given up a great deal for their lives at home and for their children.

Heffner: For good reason or for bad?

Hillman: Well, I think because for whatever reason they’ve done it. And I think it’s sort of an intrinsic part of being a mother that you want to be able to compromise and do that and make those sacrifices and be at home.

Heffner: And do you advise against that?

Hillman: No. what I’m saying is that to do that you have to understand that the risk of doing that is that after 15 or 20 years you may come out of the marriage with little or no prospects for maintenance, with little or no child support. The average child support, we’re not talking about wealthy people here, the majority of the people in this country are not wealthy, the majority of the divorces that break up there are very few marital assets. The marital assets that exist are the incomes of the parties. And at the end o the marriage those incomes, the husband’s is far greater than the wife’s in his ability to earn and continue to earn, is far more enhanced than the wife’s. She’s left with the children and she gets an average support award of $25 a week, and on that she’s expected to be able to pull together her life and juggle all of these things.

Heffner: Without regard to the figures because you disagree on the figures…

Seider: Yes.

Heffner: …what would be your advice to a young woman getting married in terms of the possibility of an ultimate dissolution? And if I understand correctly approximately 50% of our marriages will face dissolution?

Seider: It is just about that percentage. I think first of all that there’s no reason why a woman cannot plan on some sort of career as well as being a parent. The concept, as I’m understanding what you’re saying Adria, is you’re either in the house or you’re out. And that just simply isn’t true.

Hillman: No. but if you’re out of the house, you’ve compromised what you’re going to do out of the house in order to be…enable you to be a parent. Women who work in the home and in the marketplace, and many of them do, take jobs in the market that enable them to continue to be caregivers at home. They continue to run the household.

Heffner: That’s not too different from what you would say, is it?

Seider: I would not say it’s too different, but there’s also a side of this that no one is addressing. What about a father? A farther is a parent. The fact that he’s out in the job market, does that prevent him from caretaking and parenting? Why should he be different?

Hillman: The statistics on fathers as parents and what happens subsequent to divorce is that more than 50% of the fathers of this country do not see their children at all in the year subsequent to divorce.

Seider: I am not familiar with these statistics. I certainly can’t say whether it’s true or it isn’t true. I’m dealing with clients I see in the society in which I live, in the world of matrimonial law as I’m aware of it. And what you’re saying is simply disproven by cases and facts. Fathers do participate. Fathers are wonderful parents as are mothers.

Hillman: I don’t question that. I’m talking about what the average family…what happens in the average family? What happens with the average home when divorce…I mean why do we have so many single mothers in this country with children? Because fathers are not around in one fashion or another. Why do we have so many situations in which husbands remarry and don’t care to see their children? In my practice I have more complaints of women who can’t get their ex-husbands to visit with their children than I have of husbands are denied visitation.

Seider: I simply find what you’re saying totally unrealistic.

Heffner: Therefore, what advice would you give?

Seider: To the same particular woman?

Heffner: Right.

Seider: If she chooses to stay home and enjoy her family, then that is what she should do. But I would certainly caution her to prepare herself for something out in the job market for her own mind if nothing else.

Heffner: But if she doesn’t do so sufficiently, and I gather that in most instances that is the case that she is not prepared at the time of divorce to support herself, to provide for her own support as she had been provided for within the context of the family, then what? Then what do you seek in the divorce settlement?

Seider: If you are talking about a low income family, there’s very little you can seek because there’s very little to distribute. But if you’re talking about the family which has substantial means and a divorce ends after many years in a situation like that and a woman has not prepared herself, god knows she must have permanent maintenance which is not now provided for. She should have permanent maintenance because she’s not been in a position to go out and get a job. Be self-supporting is an absurd term to a woman at that stage of life. However, a woman who is in her early thirties after a five or six or a young marriage, call it whatever designation of years you choose, she can go out and earn a living. I believe she absolutely can. There are facilities to care for the children, and why should she not be able to go out? Why should she be a permanent dependent for the rest of her life?

Heffner: You talk about long term maintenance.

Seider: Yes.

Heffner: What about the division of the properties that exits at the time of the dissolution of the marriage?

Seider: Again, in a long marriage the dissolution of property is becoming more and more half and in frequent situations is and should be more than half. Assuming a woman has worked in the home as a mother and a caretaker, has contributed completely as that homemaker, has additionally contributed funds to this marriage. Perhaps she should get more than 50%.

Heffner: why?

Seider: Because she has done more than her half as a partner in a marriage. If the husband is outside earning the money, she is within this family maintaining this home, being a mother, being a wife, being a chauffeur, being everything that she is. And in addition, perhaps has contributed financially to this marriage. In addition, perhaps, has gone out had a part-time job or whatever, maybe in that situation a marriage of many years duration she should have more than 50%. She’s given more than 50%.

Heffner: I’m a little puzzled. I’m the man sitting here at the table with two women, but and as I’ve said to you before my wife keeps asking me why am I doing all these programs on divorce, but I’m a little bit puzzled. In years past when commentators on divorce have said, well, the woman didn’t contribute, why should she get quite as much? Why should she get half? Commentators who didn’t understand what a woman had contributed not in terms of dollars but in every other respect in maintaining that family and creating that family and sustaining it for the man who is out at work in the marketplace. Why now is there this notion that she was contributing more than half? Half I can understand, but it puzzles me as to why there is this notion of more than half? Is it to solve another problem? Is it to solve the anti-feminine problems f our world? The sexist problems that persist in our society?

Seider: Mr. Heffner, what I said was very specific. I said a lengthy marriage where a woman has performed all functions which one would attribute to being a homemaker which prior to EDL, equitable distribution law, had no value, and now has value. That value is equated on an economic parity with the husband going out and working.

Heffner: But you don’t want parity.

Seider: No, I didn’t say that. I want parity. I want additional parity if…if that woman has also supposedly had a part-time job. Contributed dollars as he has brought in dollars. That’s what I’m saying.

Heffner: I see. And you’re in agreement?

Hillman: Well, my feeling is that you should look at equitable distribution and think about alternatives to it. The problem from my perspective is most of my clients can’t afford me. Equitable distribution is a very expensive law. It’s a job for lawyers. There are three, four week trials. Valuing he assets. Determining whether they’re marital. Figuring out what your client’s share is…is a very lengthy process. It’s time consuming. In order to relieve the courts, in order to enable parties to have a sense of what they are entitled to, it seems to me we should have a presumption of equal. That is, ordinarily in marriages it would be 50/50. If there are circumstances where it shouldn’t be 50/50, either because the wife has contributed more, or it’s a very short marriage and there are young children, that would dictate otherwise. But let’s give people some level of certainty and opportunity to settle cases without going to court. Right now it’s very difficult to advise a client as to what he or she might get in equitable distribution. If we can change the law, made it simpler, we would enable people to settle much more easily. And we would do what I think is fair in most marriages. Most marriages are partnerships in which both of the parties at the en dare entitled to 50% and that’s leaving aside the question of maintenance and support which I believe are also critical and are not handled adequately in our law.

Heffner: May I ask whether there is some thought given to the possibility that matrimonial settlements, that divorce settlements I should say, have as a not-so-hidden agenda in part the objective of maintaining marriage rather than making the dissolution of marriage so much more easier?

Seider: That’s a wonderful concept. And if in fact you can prevail upon people to talk to someone who can help them in that regard, yes. In marriage if it’s possible to maintain it…I assume you’re talking about reconciliation?

Heffner: Well, I’m talking about the possibility that we spend less time talking about the terms of dissolution to make dissolution easier and perhaps more time to an older notion, if we are essentially concerned with family, of preventing this. No I was really talking so much about reconciliation. I was talking about a different point of view.

Hillman: I think it’s very hard. I think we’re in the 1980s. We’re in a narcissistic society that believes in the individual. If you look at California again no-fault divorce is in. What is no-fault divorce? It means that any party can wake up one morning and decide they don’t want to be married anymore, and can go into court without the other party’s consent and get a divorce on irreconcilable differences. Whatever. That is the trend. It seems to me that it’s a very dangerous trend both in terms of the economic social consequences and what we’re saying about family and what we’re saying about marriage. In New York we don’t have no-fault divorce. We have the ability to get a conversion divorce after a year of living apart pursuant to a separation agreement, but in New York you must still have grounds which does enable parties, force them, to the bargaining table and also keep them together somewhat.

Heffner: Would that be in your thinking an appropriate motivation for structuring the law? Keeping them together?

Hillman: Well, it has been in the past. As to whether or not it can be now given everyone’s individual interest and sense of what they want to do with their lives, I don’t know.

Heffner: You’re speaking as an observer.

Hillman: That’s correct.

Heffner: And I was really asking you what your own….if you had your druthers, what would they be?

Hillman: If I had my druthers, I would say, yes, that we should try to encourage people to stay with their marriage. I see lots of people who get out for reasons that I think are developed fairly arbitrarily and that aren’t well thought through and that aren’t mature.

Seider: Going back to something you said before, if you could teach people before they get married what marriage is all about so that they enter it with a sense of understanding and intelligence, that may service to save the marriage. But when you get to a point when that marriage has gone bad for whatever reason, and I vehemently oppose fault divorces, I think we should be a no-fault state, the time then comes to save, if nothing else is left, at least for heaven’s sake save these children that are the products of this marriage. Because if you keep people in a marriage in a dishonest state where they don’t’ love each other, they’re there because they’re there, the only ones who suffer are the children. This is my own personal opinion. I think that honesty is required, and to keep people together because they should stay together, number one it’s destructive to their own lives, and it’s destructive to the lives of those around them.

Heffner: Isn’t it destructive because our society, as you suggested, increasingly is based upon hedonism? Increasingly is based upon a decision in the morning that I no longer want to be here? Were we really that much worse off? Really? And were the children that much worse off when it was much more difficult to make that decision and to accomplish the objective?

Seider: In my opinion, yes. In my opinion…first of all life is much too short. And every day is a day that should be spent in whatever is one’s best endeavors, whatever makes one happiest and the family happiest. Maybe that’s a hedonistic attitude. Indeed it may be. But to me it makes far more sense. It is far more productive of a healthy society if people are as happy as they can be with themselves. Therefore, they can be happy with others. To live with someone that you cannot stand the sight of is destructive. It has to be.

Heffner: Seize the day.

Seider: Why not?

Heffner: Not the partner, but the day.

Seider: (Laughter)

Hillman: I would like to say about no0-fauilt divorce that again in terms…again it sounds good. It sounds like, well why should we have people get on the stand and have to go through the charade. But the economic and social consequences again, as the experiment in California demonstrates on women and children, has been disastrous. And that again I can only say that everyone should read Lenore Weitzman’s book. She’s a sociologist. She spent ten years on this. She came from a perspective that no-fault divorce was good and joint custody was good. And all of these other new notions were very good. But what they are, are trying to legislate equality by legislative fiat. And the reality is that women are not equal. That’s the reality. And that you can’t make them equal by saying they are. And until they’re equal in the marketplace and until their responsibilities at home are considered equal, you will not hair fair division of assets or fair life for them after divorce.

Heffner: A thought. You may say perish that thought. Are you suggesting equal distribution to any extent as a means of decreasing the number of divorces? Decreasing that attitude that says we can do this so simply?

Hillman: I don’t know. I don’t know whether it would have that impact. I think that…I think frankly, that it will be very hard in these times to get people to stay married if they don’t want to stay married because the societal push is just in another direction.

Heffner: But if your figures, and there is some disagreement here if it is made more difficult for the man who you maintain comes out of this much, much better off than the woman, wouldn’t that point toward fewer and fewer seizing of the days?

Hillman: Possibly. Possibly.

Heffner: You think otherwise. But you don’t agree with the figures in the first place.

Seider: I don’t agree with the figures. And I don’t agree with the premise of staying married for the sake of staying married. And I also don’t agree with the equal, the presumption of equal.

Heffner: Then I don’t quite understand. You said before, I thought, equal plus.

Seider: Yes. Equal plus in certain…let me retract. Each case has to be set on its own set of fours. All right? If you have a presumption of equal, that in and of itself defeats something you said before, Adria. Settlement. You won’t settle the case. Because no woman would ever say, why should I settle? I have a presumption of equal and no man is ever going to settle because he’s going to go in and…

Hillman: (Inaudible)

Seider: I disagree with that because he will go into court and say I have nothing to lose. So what happens? There is no settlement. There is vicious, expensive litigation. And who suffers? The children do.

Hillman: That’s what we have to do.

Seider: I don’t agree with you because of this. I have far more credence in the court system than apparently you do. I think our judges, most of them are good.

Hillman: What is that supposed to mean?

Seider: What it means is that I think courts are tending to be fairer and fairer as each case goes on. One year ago this state had no understanding of a spouse’s indirect contributions to the separate property of the other spouse.

Hillman: That’s correct.

Seider: There was a direct contribution approach but there was not an indirect. Now the case, it’s Price vs. Price, they’re going up, they’re seeking leave to go up to the Court of Appeals and that case allows for a passive sharing by a wife, as separate property appreciates. There’s a passive appreciation. A wife now may be entitled to that passive. The fact of her being a wife and a homemaker may now be an entitlement to take part in the appreciation of separate property. This is a whole new world again.

Heffner: Let me ask both of you this question. Would you advise your clients, would you advise young people who are about to embark upon marriage or older people to have pre-nuptial contracts as a means of avoiding the questions that are put before all of us in these instances?

Seider: Second marriages surely.

Heffner: Second marriages surely. What about the first?

Seider: Depending upon the circumstances. If you have a couple who get married and one spouse is very successful coming into that marriage you’re talking now about a person who perhaps is in their late 30s, 40s, 50s. Established, successful person. May or may not want to become involved in a lot of nasty litigation down the road if that marriage doesn’t work. So in that instance pre-nuptial might be advisable.

Hillman: Well, I think that Paula is saying that under equitable you’re going to have nasty litigation which his just the opposite of what she said before, that we don’t have it. I think that the problem is that you don’t know what you’re going to come out with under our present law in New York. And that if you want some certainty as to what will happen under dissolution, then you should have an ante-nuptial agreement. If you’re willing to leave it to a judge or to a negotiation if and when your marriage is dissolved, then that’s fine.

Heffner: In fact you find more and more people with pre-marital…

Hillman: Absolutely.

Seider: A lot of people are doing it.

Hillman: Young people.

Heffner: Young people.

Seider: I don’t’ find young people.

Heffner: I guess I’m so old and fuddy duddy that it somewhat horrifies me. Ladies, we are at the end of our time. Thank you very much for joining me today. And thanks, too, to you in the audience. I hope you’ll join us again next time. And if you care to share your thoughts about today’s program, please write to THE OPEN MIND, P.O. Box 7977, FDR Station, New York, NY 10150.. Meanwhile, as another old friend used to say, “Good night and good luck.”

Continuing production of this series has generously been made possible by grants from: the M. Weiner Foundation of New Jersey; the Mediators and Richard and Gloria Manney; the Richard Lounsbery Foundation; Mr. and Mrs. Lawrence A Wein; Pfizer, Inc and the New York Times Company Foundation.