The Divorce Papers: A Novel (11 page)

Commonwealth of Narragansett

Family Court

Acceptance of Service

Domestic Relations Summons

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

Answer to Complaint for Divorce

Now comes defendant
Maria M. Durkheim
by her attorneys, and answers plaintiff’s complaint for divorce, dated
February 15, 1999
as follows:

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

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 for 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.