Divorce

IMagine Yourself and the love of your life in line to board a flight. You've cleared security, everything you own has been checked through and you can see your plane out on the tarmac, shining with the promise of your dream destination. Then, as you hand over your boarding pass, you notice a disclaimer: This Airline Crashes And Burns 50 Percent Of The Time. Odds Are You'll Survive The Fear, Screaming And Devastation, But Your Injuries Will Never Heal Completely. Have A Nice Flight.

This is the airline called matrimony, and you'll probably board if you haven't already. And though few of us marry thinking we'll probably divorce (I didn't, either time), the statistics are grim: Among men 45 and younger, half of first marriages fail. Remarriages come apart 60 percent of the time. Average duration at breakup falls on the famous itch line--seven years. So when you marry, it makes good sense to fasten your seat belt, mark the exits carefully and read the evacuation instructions in the seat pocket in front of you.

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Sorry, love doesn't conquer all: "It may be cynical to say that love alone doesn't guarantee 'till death do you part,' but in today's world it's the truth," says Neal Hersh, Beverly Hills divorce lawyer to such illustrious clients as Robin Givens, Halle Berry and Kim Basinger. "None of us can afford to leave anything to chance. We should document everything, and marriage is no different from any other transaction. It's not negative thinking to have some preparation for divorce, given the statistics."

The most melodramatic of 2002's public marital dustups involved then New York mayor Rudy Giuliani and his wife, Donna Hanover. It was a mudslinging saga that saw Giuliani vilified for bringing the alleged "other woman" into the mayoral mansion and announcing to the press that he had filed for divorce before he told Hanover. Then, on the wings of his cool paternal presence in the ashes of September 11, his image was resurrected. Time named him Person of the Year, and his earnings jumped by a power of 10.

When the two settled the demise of their 16-year marriage a day before they were scheduled to go to trial in July 2002, the New York tabloids declared Rudy had been beaten like a gong. He agreed to give Hanover $6.8 million tax-free, the $500,000 Upper East Side condo, unspecified child support for their 16-year-old (text continued on page 116) son and 12-year-old daughter, plus all legal fees.

"There are no victories in divorce," Felder said in response to suggestions that he and his client had lost the war. "It's always a sad outcome."

The decision to bail out of a marriage is perhaps the hardest to make, especially if children are involved. (There were two in my first divorce, and losing daily life with them is the worst thing I've ever had to suffer.) But as sad as divorce is, keeping a cruel marriage together is sadder. According to Miles Beermann, a Chicago divorce lawyer, the first thing you should do when you think of divorcing is to get counseling. "See if you can save the marriage," he says.

But if you find yourself daydreaming about how good it would be if your spouse died in a plane crash, it's probably time to end the relationship.

There are thousands of books and online sites that offer useful divorce information, but doing it yourself is like trying to perform your own open-heart surgery. Divorce laws vary from state to state, as do the technical requirements for filing motions and discovery. Child custody and the identification and division of marital assets are complicated and emotional. Unless the divorce is unusually simple, or you choose to default (as I did in both of mine by not answering the complaints filed by my wives), you'll want to work with someone who knows the territory and can be objective. Find a lawyer.

"Do that immediately," says Cook County circuit court judge Paul Karkula, who practiced divorce law for 18 years in Chicago before taking the bench. "When you see it coming, you can't choose a lawyer too soon, if only to get legal advice. It should be somebody who specializes in divorce."

An alternative, says Karkula, is mediation. "If the two people are able to sit with a trained mediator and work to an agreement, it can be wonderful. There are mediators to deal with custody issues, and psychologists and social workers can be a great help. No matter what the agreement, a judge has to approve it. If the right factors are in place, mediation should be the first choice. But if the separation is contentious, you need somebody to get what's best for you."

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"Don't be surprised if your spouse's lawyer is an asshole. So is yours": That advice comes from a 35-year-old man who survived a five-year divorce battle that included a nasty trial during which his wife's lawyer asked if he owned a women's hat collection. In moments like that, he said, you hope your lawyer is an asshole, too.

"The first thing you should ask your lawyer," says Karkula, "is what it's going to cost. Tell him exactly what you can afford. If you agree on the price, tell him your story and make sure that he listens. And never forget that you're interviewing him, not the other way around."

The question of whether your lawyer should be a man or a woman can have interesting implications. Choosing a female lawyer to argue your case can work to your advantage.

"There's a lot of imagery in this business," says Hersh. "Imagine you're asking your wife to go back to work and she's saying she can't because she has to take care of the children. Who better to set an example than a woman lawyer who has children of her own?"

Whoever you hire should be someone you trust and can talk openly to, because you're going to give him or her a more detailed account of your life than you have ever given anyone else.

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Before you file: Everything you and your spouse have accumulated over the course of die marriage will have to be documented, including current salaries, real estate, pension funds, bonuses, taxes and debt. The factors that will ultimately determine how your joint assets are divided will be somewhat different, depending on whether you live in an equitable distribution state or in a community property state. Both systems aim at fair division, but, in general, equitable distribution states give more discretion to the judge, while community property states begin with a stricter 50-50 approach. In either case, you have to know precisely what the two of you have.

"Take a measure of the status quo," says Karkula. "Know your monthly expenses--mortgage, car payments, tuition, even the newspapers. Determine what the expenses would be if you and your spouse were living alone after filing. Be aware of your spouse's financial condition--to the penny. Keep the information to yourself."

"Don't attempt to hide anything," says Beermann. "It's a crime, and you could go to jail. Don't discuss with your wife what you're going to give her, because that will become the floor and you'll never get it done for less."

Premarital assets--the things you brought into the marriage or inherited while you were married--are generally not included in the division, though the ways in which you have shared them can make a difference in the settlement. If, for instance, you inherit a million dollars and use part of it for vacations or tuition, or if your spouse cuts her working hours because of the windfall, it may fold into your mutual assets.

A prenuptial agreement can be beneficial or worthless, says Karkula. "They're best for older couples who've been married before and have kids, or when one person is much older and wealthier than the other. If you do a prenup, make sure your spouse has time to look it over and show it to her lawyer. Courts don't look kindly on prenups that are handed over in the limo on the way to the church."

"If you're starting at ground zero as a young person, you probably don't need a prenup," says Hersh. "It can be too emotional."

A bad settlement is better than a good trial: "You can be more creative in a settlement than a judge can be at trial," says Beermann. "Why let somebody in a black robe tell you how to raise your children, or how to run your financial life?"

In fact, more than 90 percent of American divorces are settled, an arrangement that not only saves you a lawyer's trial fee--$500 per hour or more--it will also keep you off the witness stand where every aspect of your personal life will be revealed. No matter what the settlement, both of you will probably be unhappy with it. Divorce is rough surgery that requires you to leave something in the operating room that you'd rather be wearing.

"Old judges will tell you that they know they've made a good final decision when they see both sides shaking their heads," says Karkula.

"Divorce takes a bite out of your ass no matter what side of the fence you're on," says Hersh. "But most judges try to do the right thing, even if the lawyers don't. There are some disparities. The partner with the greater financial wherewithal will probably do better in some ways. But it's sexist to say that men always come out ahead economically--you can't assume the man is the breadwinner. Many women these days make more than their husbands do. You're not going to find too often that either side gets totally obliterated unless one of the lawyers is asleep at the wheel. And apart from whatever happens financially, I think women come out better emotionally in the long run. It can be very emotional on both sides while the case is going on, but after all is said and done, women get on with their lives while a lot of guys are basket cases."

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You probably need a divorce lawyer if any of the following applies:

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Counseling to save the marriage has failed and communications have broken down.

One of you wants the divorce more than the other does.

There are children and custody issues involved.

You find your spouse being secretive or putting money in places he or she ordinarily doesn't.

Your spouse has talked to a lawyer.

How to hire a lawyer:

Remember: You are interviewing the attorney, not the other way around.

Choose a lawyer who specializes in divorce.

Reveal how much you can afford to spend and ask his or her hourly billing rate and the hourly rate of any associates who will be involved in the case.

Insist that any part of your unused retainer be returned.

Don't sign an agreement with the lawyer before you have had a chance to study it and ask questions. Show it to another lawyer.

Before you file:

Gather a detailed account (with supporting documents) of your current financial condition. Include everything: salary, bonuses, retirement plans, real estate, vehicles, taxes, debts, cash. Your lawyer will provide you with a complete list, or you can find one online or in the many books on divorce.

Gather the same account of your spouse's finances.

Detail your monthly expenses and estimate what they would be if you and your spouse lived apart.

Make a list of your premarital assets--things you brought into or inherited during the marriage that you may not be required to split with your spouse.

Save as much money as you can. No matter what, divorce will make you both poorer than you are now.

What not to do:

Don't hide assets. It's a crime.

Don't discuss possible settlement terms with your spouse unless your attorney is there.

Don't pretend you want to reconcile if you don't.

Don't make any significant changes in your financial or living situation without talking to your lawyer.

Prenuptial agreements:

Consider whether or not a prenup will doom the relationship. Make sure you both agree on the reasons for it.

Have it drawn up by a lawyer.

Reveal honestly your assets and debts.

Give your prospective spouse plenty of time to look it over. Suggest he or she show it to a lawyer before signing.

After you're married, put it away and don't talk about it.