Who Gets What … When We’re Not?

THE OPEN MIND
“WHO GETS WHAT WHEN WE’RE NOT?”
HOST: RICHARD D. HEFFNER
GUEST: SAMUEL FREDMAN
VTR DATE: 1/25/86

HEFFNER: I’m Richard Heffner, your host on THE OPEN MIND. And our subject today is the effect that new approaches to what is yours, what is mine, what is ours in divorce settlements may have not only upon divorce in America, but also upon marriage in our changing times. My guest today is Samuel G. Fredman, a distinguished member of the bar, Vice President of the American Academy of Matrimonial Lawyers. For some time now our legislatures and our courts have been changing the rules for divorce. They may end up changing them for marriage as well. And with all the good will in the world, such social engineering by the legislators and judges alike designed of course to achieve fairness as marriage partners separate may just prove less a boon than we anticipate. Marital assets. Equitable distribution. Career assets. All of these newer concepts have the sharp ring, 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 seems more often than not to accompany even the most elaborate schemes to balance the equities in divorce. Well now through its pacesetting highest court, New York’s distinguished, highly respected Court of Appeals, a major jurisdiction has joined those who claim that even professional licenses earned during a marriage are marital property, an M.D. in O’Brien vs. O’Brien, the case at hand, and that in divorce their value must be divided equitably like other properties. But I’d like to begin by asking attorney Fredman whether there isn’t room here for mischief as in our other somewhat failed efforts to putting a fairer face on the always bad business of divorce. Mr. Fredman, I guess that’s the basic question. Is there room for mischief here?

FREDMAN: There’s always room for mischief, Mr. Heffner. Lawyers are always thinking of new ways to get around old problems.

HEFFNER: You mean they’re mischievous?

FREDMAN: Lawyers are mischievous. That’s what they’re hired for. To be able to…if the…if every case was disposed of on the basis of the case that was just decided, there would be no need for judges. I think one has to bear in mind…take O’Brien for example. O’Brien has to be limited to its facts. O’Brien didn’t say, in my opinion, even as much as what you just suggested it said. O’Brien said on the facts of this case, given the years of marriage and what this lady did, and with the doctor having nothing else in this world at this time but that license, then we have to value the license. O’Brien isn’t the popular view all over the country. There are cases all over the country that say exactly the opposite. So when you say mischief, I’ve just been mischievous in suggesting that O’Brien doesn’t even mean what everybody has popularly suggested it meant. And I think that it’s interesting to point out also that already the Court of Appeals has amended its decision on O’Brien. Not to change that segment of the rule, but the lawyers in New York, for example, were making capital or many lawyers were, over the fact that the dictum, what was written in addition to the finding or the holding in O’Brien, that the dictum seemed to indicate New York stood for equal distribution of assets. A theory that New York has never stood for. The legislation, the intent of the legislature as expressed at the time, equitable distribution went through. Said we don’t want equal distribution in New York. So that there were groups and people who said when the O’Brien dictum came down in its original sense, gee, this is going to open the door. Equal distribution in New York which would have been mischief in itself.

HEFFNER: Yet I was fairly careful not to say equal distribution but to use what you people here in New York have used, equitable. But the concern here, isn’t it, is that what the court has done and what some other courts in some other jurisdictions have done has been to say that a professional license can, as you suggest in a particular case, but that must mean there are other cases that are parallel, that a professional license can be considered matrimonial or marital property and be divided equitably.

FREDMAN: That’s correct. You used the word social engineering before…

HEFFNER: No? Not a good one?

FREDMAN: …to discuss, oh, good words, to discuss what it is that a judge or a judge can do or can’t do. What he should do or shouldn’t do are other questions. That’s what social engineering is all about. Now in O’Brien there was some social engineering done. A very clever accountant set up the O’Brien ruling with his testimony on the subject of this particular doctor. And there may be, as you must suggested, other doctors in the same category. But I dare say given the same Mrs. O’Brien married let’s say, twenty years with two children and doctor O’Brien a successful surgeon that this court is predicting he’s going to be…incidentally he’s not even a surgeon anymore. He’s really only an internist. Judge Myers suggested in his concurring opinion that the legislature ought to look into the problem that’s caused by giving a piece of his license, which is supposedly a license based on his being a surgeon, he ought to look into the fact and amend the equitable distribution law to give the opportunity to modify this kind of a judgment if the situation changed which it already has in the O’Brien case. But I dare say if you took a twenty year marriage, since I just suggested the license wouldn’t be worth anything, the practice would be worth something. You take the whole… (inaudible)…we’re going to use social engineering. There’s a new case in New York, fairly new case, called Price coming out of one of our appellate divisions. And very interesting theory behind it. If something is separate property because the law says so, you know inherited or gifted or had before marriage, but it makes money during the marriage and the wife has within the definitions of the present statute contributed toward that appreciation and value during the marriage, that’s separate property. Husband’s business. Started it before the marriage. Ran it very well during the marriage. Woman didn’t do anything except, I don’t want to underestimate the value of this, except stayed at home, took care of the children, ran nice parties for the husband, entertained his clients, was a good and faithful wife. That entitles her to an equitable share of the appreciation. And I think it should be so. I think that’s an important contribution.

HEFFNER: Now, let me ask you…I don’t know whether you’ll consider a fair question, but it is about fairness. What arguments would you have offered if you were defending the husband in O’Brien?

FREDMAN: I would have suggested that all she’s entitled, and I think she was, is a repayment of what she threw into Doctor O’Brien’s career.

HEFFNER: This ws a young woman who worked and supported her husband while he went through medical school. When he was finished he divorced his wife.

FREDMAN: I think it’s, you know, socially an unfortunate thing. Philosophically, intellectually. But you have to follow what the law says. I would have given her back, I might have given her a year or two maintenance. I might have paid for her to finish that education that she never got a chance to finish. But to say under these circumstances on the basis of a relatively short marriage that she’s entitled to a piece of license which he may never use…weird cases before equitable distribution. I remember known in particular where a doctor who was making perhaps 70, 80, 90, $100,000 a year…I’m talking now many years ago when those didn’t seem like such gigantic, they seemed like bigger figures then. They aren’t such gigantic figures today. This doctor divorced his wife. Wanted to marry another lady. Saw himself in the position perhaps of being stuck with large alimony payments for a long period of time, and said I don’t want to be a surgeon any longer. I now want to be an anesthesiologist. And I’m going to go to work for Bronxville Hospital, Lawrence Hospital in Bronxville, which is exactly what he did do. And he reduced his earning power, his earning capacity. And the judge said and the court they were…the appellate division sustained them. Judge said we have to take it on the basis of what it is today. We’ve always believed…we tell a woman who comes in listen, you’re entitled to live in the same standard of living that you’ve lived under, but you can’t do it if the money’s not there. And in O’Brien what Judge Daronco did, and he’s a distinguished judge, the appellate division, it’s now been, it’s been sent back to figure out how much that license should be valued at. But what he did was to say in using your words again, in a sociologist’s terminology rather (than) in a judge’s terminology, I’m going to take care of you. It’s a kind of a dirty deal that you got in life, and I’m going to take care of you. But she’s still a young woman. And especially in the women’s movement today with the desire to have equality or equitability at least in all phases, equality or equitability should send Mrs. O’Brien to work with the same kind of education that she wanted to have before she met Doctor O’Brien.

HEFFNER: Let’s look at the other side of it. If you were her attorney, what would you argue?

FREDMAN: I would have argued not only that she’s…she had a very good lawyer, too. I don’t want to minimize either of those lawyers.

HEFFNER: Oh, I understand.

FREDMAN: Both of whom I know. But I would have argued in her case not only did she, was she entitled to this very cleverly thought out, (Stanley Goodman is the equitable distribution accountant), thought out and thought out this very cleverly, but I would have also argued that she’s entitled to maintenance for a period of years until she gets on her feet and given her an opportunity to modify the judgment if Doctor O’Brien were to do very well in his surgeon’s capacity.

HEFFNER: Now, what we do have is a situation in which the members of the Court of Appeals in New York, a very distinguished group, seemed to have rejected what one of its members maintained in a concurring opinion they should have provided or at least should have put pressure on the legislature which itself makes the law for the ability of the good doctor to come back and say, I joined the Peace Corps. I’m not practicing medicine. I’m not making the kind of money that was anticipated. And have a redistribution. Now I gather, since it was a concurring opinion that his colleagues didn’t want to bring that into their decision. How do you explain that?

FREDMAN: I’ll give you a little more insight into that if I may. I have to be careful. On that particular (case) (the) concurring judge was a partner of mine at one time and a very brilliant man, and I might personally agree with the theory behind what he said.

HEFFNER: And you’re an officer of the court and I’m not.

FREDMAN: All right. (Laughter) But the so-called ad hoc committee composed of representatives of all of the bar associations which have been following the change in law, remember we only have this law since 1980 here in New York State. New York used to be in the, New York was in the eighteenth century until about 1967 and it’s about gotten into the nineteenth century now in matrimonial law. And I think there is, I could agree there with a lot of its critics that it ought to pull itself up. But this ad hoc committee composed as I say of representatives of all of the major bar associations in New York faced up to this exact problem immediately after the O’Brien decision came down. And in an almost unanimous display, odd may I say for the Committee, cause we very rarely are unanimous today in anything we do, decided against it. It wasn’t something that ought to be legislated about at this time. I understand Judge Myers’ theory on it, and I think I expressed it before, but I guess we’re just not ready to go that far, any more than we’re ready in New York to go to community property.

HEFFNER: Are you approving of the unwillingness or the decision at this point not to support this position?

FREDMAN: I voted against supporting this position, so I have to admit that I’m approving…ah, disapproving of the Myers’ concurring opinion just as his colleagues did.

HEFFNER: Why?

FREDMAN: I think if the legislature thought it should have been done that way, it would have been done that way.

HEFFNER: Oh, now, now, now.

FREDMAN: Well, that’s the place that…you see in the same way as our committees decided not go for it, the legislature decided not to go for it.

HEFFNER: Yes. But I was asking you what you would do if you were in the legislature and the opportunity were presented to make this change.

FREDMAN: I think that’s a fair question. All of us are bifurcated, trifurcated, what have you, and sit in different roles and different times. I represent husbands and wives as I always like to say, mothers and fathers, men and women. You know, you’ve got to put aside your personal point of view when you are familiar of, aware of, sympathetic to, empathic to all of the possible suggestions that are made by people who come before you. This idea of saving or leaving it open that way will promote in my mind more litigation that it will save. And for the odd case that O’Brien is, remember I started off earlier by saying O’Brien is not the normal case. I think it has to be recognized to be the sui generic case that it is. From my point of view I would have voted against, I did vote against changing it. And that’s really the reason. I don’t think, I think it stimulates litigation later on. It kills off settlements. Let me say this: We’ll have that any time there’s a court judgment, and I’m sure you’re aware court judgments are modifiable. Separations are not necessarily so.

HEFFNER: Not this distribution. Right? Under the New York State law this is not modifiable. And Judge Myers was saying that the kind of frivolous claim that you’re concerned about would be handled by assessing court charges to those who would be quite so frivolous as to come to court in an inappropriate way. He did write that.

FREDMAN: He did. I think that’s intellectually sound and practically not so. Court charges the woman who had to look to the, I’ll make it even worse. The man who has to look to his ex-wife for payment of counsel fees even in agreements in the case of separation agreements that provide for it specifically, finds it very difficult to get his money.

HEFFNER: Let me ask you another question. It’s certainly not shifting grounds not totally but it moves in a different direction. What do you consider to be the appropriate objective of a court ordered settlement? Because I think you know, I think you were watching when I did another program on THE EDITOR’S DESK and my guest, also a matrimonial attorney, said something that made me wonder whether she was asking that divorce be used to correct the sexism of our times and that a divorce settlement should be used to make a woman whole as I presume she is not in our society even when she enters marriage. What would you make the objective?

FREDMAN: That’s really a wonderful question. Very broad.

HEFFNER: Narrow it down then.

FREDMAN: We can’t as divorce lawyers, settle all of the marital problems that come before us or that can possibly flow even after we’ve disposed of whatever it is we do. I’ll give this example. I referred a few moments ago to the fact well, let me say it this way: We all know that we try in our agreements to keep a woman who we represent as close to whole, as close to the status quo as could be possible as she had.

HEFFNER: While married.

FREDMAN: As she had while married. That’s…our head tells us…our heart tells us let’s do that. Our head tells us, how can you do it? If a man and woman and two children break up, and the woman and two children stay together and the man goes off on this own, can we give the man only 25% of the whole pot? And have him earn money to pay for child support besides? When he leaves the house, does the wife get the benefit or does…should a quarter of the amount that she otherwise was getting be taken off because he’s left? The answer’s “no” in both instances. It…there just isn’t enough to go around. Four people, two people can live together more cheaply than live separate. And the very thing that’s happened in this country today with so many people ganging together without the benefit of marriage and living together for financial reasons is kind of proof of that. So that the law or the divorce court can’t accomplish all the things that many of the lawyers try to see it accomplishing. Making something gender neutral to rid us from sexism doesn’t mean a thing.

HEFFNER: What do you mean it doesn’t mean a thing?

FREDMAN: Well, we live in our prejudices. We go to courts. You see, when I interview a client I tell him the worst than hiring me is depending upon a judge or judges to treat them fairly and equitably. Not because I dislike or disapprove or don’t have the greatest respect for judges. But I know now from the vantage point of my practice over the years how little judges enjoy matrimonial cases. How much they hate custody. Of course, that’s the worst kind. But any of the cases that come before us we work weeks or months to prepare a case for trial. And then in the trial court find the judges pooh-poohing what we’re saying. Paying little or no attention to our briefs or our memoranda of law. Not because they don’t want to. But because they recognize you can’t do in a courtroom even what you can do sometimes in a qualified psychiatrist’s or psychologist’s office. I sue the word “qualified” there.

HEFFNER: Then what can you do in a divorce courtroom?

FREDMAN: We do, we work to the extent, we work to the goal of getting the woman or man a fair deal. That’s my goal always. Remember I said, I stated in the beginning the only thing worse than going to the lawyer is depending on the judge. If you go to the right lawyer, and when I say right lawyer, there’s so many of them and I don’t mean to deprecate any of them, but there are people who care more, there are people in our field who are in it for the money. People in every field are in it for the money. I’m not suggesting to you…that’s not a halo around my ear…that I’m not interested in making a good living also. But you shouldn’t be in this field unless you’re going to feel for people. And having that feel for people…you know that Mr. and Mrs. X if they could only sit down and talk, because they care about their children. And they care even something for each other’s rights and wrongs. If they can’t dispose of it, then we’re there to do it. Not in the emotional sense, but in the sense of looking for the best deal. I could be fair and still work very hard. Try my case hard as I can. Some of my best friends are matrimonial lawyers with whom I scrap the hardest. Because I know they’re doing the same thing that I’m doing. We may look at a case in a different fashion. We may teach each other during the course of a trial. We may, we may get some of this, what the judges refer to as social engineering or what you referred. We may get some of it because we’re putting those ideas in the judge’s head. That’s the mischief that you were talking about earlier. That’s our job to do that.

HEFFNER: How would you look at this from the bench?

FREDMAN: You’re talking about me now?

HEFFNER: I’m talking about you.

FREDMAN: Many people think that I should never go on; I mean I’ve had the offer already. I’ve had the opportunity I should say. Nobody offers…an opportunity. Many people say I shouldn’t be because I’m too activist a lawyer. But I think I could if I wanted to settle down into with my experience…and many people like me. I’m not suggesting only myself, but I’m trying to answer your question specifically. I think I could look through and understand the horrors that brought the people before me. That basis of my experience. In the same fashion that we say judges who have been in the district attorney’s office or been clerks to other judges who’ve never met a payroll and haven’t seen now to administer an office don’t understand how to make a matrimonial award in the same fashion that we do. I understand all of that. Lawyers with this background….You have to recognize and… (Inaudible)…cut through some of what is totally emotional. I have a lady in my office right now whose husband left her, both her parents died, and her seventeen-year old son is what might be referred to in some instances as a wayward minor. All within a period since September 1985. Four, five months ago. Her case is tough as hell if you forgive me, because of the emotional aspect. But we still have to live within her husband’s earning. She’s 45 years old, and perhaps not able to work. Been married 22 years. And we have to live within that money. We can’t…ours is not to punish. Ours is not to find fault. I am…since 1964 in this state, I’ve been working to try continually to change the matrimonial law. I referred earlier to the fact that we’re still in the dark ages. We’ve come a long way since Judge Samuel Rosenman in 1964 appointed the first special committee on matrimonial law out of the bar association of the City of New York. And I was the secretary to that committee. I’ve continued year after year with a lot of other people working to change the law because lawyers know how to change this law. Lawyers work at it.

HEFFNER: In terms of general principles, how would you bring a law into the at least twentieth and perhaps the twenty-first century?

FREDMAN: We have, with all its faults, we have to have no fault. We cannot continue to do what we’re doing. With the power…

HEFFNER: We have no fault.

FREDMAN: No, we do not. I’m talking about the State of New York now.

HEFFNER: Yes, that’s fair.

FREDMAN: We have only one no fault ground out of four and that one requires, I don’t want to use the word “collusion” because that’s unfair, because if people will wait the year after they sign a separation agreement then that is a no fault ground and I agree with what you say. But most people when they separate want a divorce. And most people who separate ought to be divorced. They oughtn’t to wait that year because in that year there can be new problems flow(ing). Children want to change where they live, for example. Man’s financial condition changes. The woman’s needs go up. Inflation. Whatever it may be. Why wait for those problems to be here? Get the divorce. At that stage one or the other parties says no, I won’t give you the divorce. And then you’re stuck unless you have adultery or cruel inhuman treatment or abandonment. And all the lawyers being mischievous to some degree have found ways to work round that because in many instances we have constructive abandonment. People refusing to live together in a marital sense. So that they can get a fault divorce in what is essentially a no fault situation. So that that’s a change that has to come. I would, I’m against the presumption of equality because that’s mischievous and dangerous. So I wouldn’t change that in any sense. But I would find a better way. And I think we’ve found some. I trust judges to the extent…I want to say it in a different way. I’m glad to keep on the record about what I just said about I trust judges. It is now said that one of the problems with maintenances that the judges don’t understand that when they give a woman equitable distribution or a distributive award of the assets, they think the laws barred them from giving maintenance as well. And there are people who need not only the assets, but they need maintenance as well. Judges aren’t barred from that today. A few isolated examples have come up. But we’ve now suggested a change in the law to specifically say that the judge is entitled to do that. I think it would overcome many of the difficulties that the women’s movement, for example, argues is what’s wrong with the law. The presumption of equality would be too dangerous. You would not be able to settle a case. Lord forgive me for saying this too loudly because there will be a lot of women’s groups down on my head. But I have discovered over the years, whatever the reasons are, I don’t think anybody can argue with it that women in most marriages are not as informed as they ought to be. Are not as…

HEFFNER: About their rights?

FREDMAN: Not only about their rights, but how to run their lives. And so if you said to them you have a presumption at 50/50. You never get them to take 49/51. Whereas now we have some flexibility in bargaining. And I said women purposefully there because men who have been out in the business world and know there are reasons…sometimes you can’t take away a man’s assets because he needs them to do business with. And if he doesn’t do business, he can’t earn the money to maintain the woman and the children.

HEFFNER: Mr. Fredman, this is such a fascinating subject that obviously I’d like to continue and continue and continue, but I’m getting the sign we have no more time. I suspect that I’m going to have to bring here someone who perhaps disagrees with the points that you’ve made. Maybe one of the women from the feminists groups that you refer to. I do want to thank you for joining me today. And thanks, too, to you in the audience. I hope that you will join us again next time here on THE OPEN MIND. Meanwhile, as an old friend used to say, “Good night, and good luck”.

Continuing production of this series has generously been made possible by grants from: The Richard Lounsbery Foundation; The M. Weiner Foundation of New Jersey; The Mediators and Richard and Gloria Manney; Mr. Lawrence A. Wien; Pfizer, Inc.; and THE NEW YORK TIMES Company Foundation.