: Have you
seen it do damage to relationships?
Spiegel: I don’t think it’s ever
forgiven. Traditionally, it’s the guy who wants it. I’ve seen cases where it
didn’t happen because the conflict was so great, and then, when the divorce
came: "I never forgave him for bringing up the premarital agreement."
Marvin: I’ve seen people not get
married on account of it.
Riesel: While I agree with Mort that in
the situation I proposed, you can do it another way, there are situations based
on New York law where you can’t be protected other than in a prenup from valuing
an enhanced earning capacity. That’s something that really gnaws—that they not
only have to divide their accumulated assets, but when you have to pay your
spouse out for your enhanced earning capacity, it’s really your earning power
going forward. You don’t have an asset, really, to divide, there’s no bank
account you can split up.
Schaefer: And it’s the same assets that
generate the income that you’re paying the alimony and the child support and all
the other expenses out of, so it’s truly a double dip.: Would you say divorce has always been an expensive
proposition, or has it become more expensive for people of great wealth?
Marvin: I think divorce has gotten
expensive regardless of wealth. Just what you have to do now to protect your
client and what’s involved has become a very expensive ordeal. In most of our
cases, I assume we’re going to have at least one or two appraisers or evaluators
involved. We’re going to have trusts-and-estates people. The total cost is just
rising.
Riesel: But it’s not just cost; even in
equitable distribution states, you now divide the entirety of the marital
assets. And in a long marriage, where there are children, the likelihood is
you’re going to divide those assets 50-50, or close to it.
Spiegel: In the real world, people
cannot afford this kind of litigation. And in the world that probably the four
of us live in and practice in, where the resources are available, it tends to
become very, very expensive. The complexity of the issues, what we have to deal
with versus what the old-timers dealt with in the ’60s, it’s not comparable. : And the roles of men and women have changed. Isn’t
the woman sometimes the one with more money?
All: Oh, sure.
Schaefer: That’s the situation where
you say to a woman, "You’re going to have to pay your husband alimony." : Is that
more common today?
Riesel: I’m certainly seeing more and
more women being the moneyed spouse. And it’s not only the financial cost that
they have to come to grips with. When their spouses have become more of the
child-rearing caretaker, women who have made substantial wealth are now faced
with losing physical custody of their children. : What if
there was a nanny?
Marvin: Well, you weigh nanny against
nanny.
Spiegel: Nannies tend to be the best
witnesses. They often see what’s really going on. : What are
some of the other special circumstances for people of wealth? How about access
to business contacts and social contacts?
Marvin: I find it in the foundations
they have established. The foundations are very important assets, because people
get tremendous benefits from being involved with them. How you value and divide
them can be very contentious.
Riesel: Country club memberships can
also become contentious, because there is often not the possibility of both
spouses remaining members.
Schaefer: You run into questions about
whether or not a membership is transferable, or whether a court can order a club
to transfer the membership to one spouse.
Riesel: I found the best way to handle
it is to divide the assets in the foundation. It can be done from a tax
perspective; it’s not too difficult and that gives each of them the opportunity
to control what’s done with the assets.
Schaefer: Sometimes there’s a
divergence of opinions as to what the goals of the foundation would be. We’ve
seen situations when foundations become a problem, then you can spin off or
create a different foundation as part of the equitable distribution.
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