The Rich Person`sGuide to Divorce
Transcription
The Rich Person`sGuide to Divorce
~ . The Rich Person'sGuide to Divorce By Randall Lane I 88 WORTH NOVEMBER 2002 _.- - ___A _.__... ., R FINDA SHORTAGEOF PEOPLEWilLING TO WAX 've,whether Shakespeareand his love sonnetsor your ed teenagedaughter.But if you want storiesabout what :ppenswhen the love stops, you'll haveto find someone ald Schiller. Basedin Chicago, Schiller is the 59-year-old ner in Schiller, DuCanto, and Fleck, the largestdivorcectice in the country. There, 32 attorneys do nothing but volving the rich andbrokenhearted. Schiller is a serious-looking man, with a thin face and a high forehead. His office looks out onto the Daley Center and Lake Michigan. Ask him about his most instructive case, and he'll breathe deeply and launch into the story about an old client, a woman married to a successful entrepreneur. Schiller won't reveal the names-a common practice in a world where highly private personal details are tossedaround negotiating ,tablesand courtrooms ascasuallyasusedFrisbees-so we'll call them Mr. & Mrs. Illinois. Mr. Illinois wasdetermined to keepasmuch money aspossiblefrom his wife of12 years.This didn't sit too well with Mrs. Illinois, who knew agood amount about his business. So the war began.During a temporary alimony hearing, Mrs. Illinois made someallegationsabout how her husbandusedkickbacks to gain business from federally regulated financial institutions and buried them as expenses. He called her a liar. And the Feds took note of it all: Mr. Illinois was indicted and then convicted. The valuable business that the wife had so zealously battled for was now virtually worthless. He went to jail; she wound up with almost nothing. It was kind oflike a dark "Gift of the Magi," but while O. Henry's story wasa study in irony and love, the Illinois case is a lesson in something far more brass tacks: the tremendous stakes that come with the mix of divorce and money. For America's wealthy, divorce is a surprisingly rare occurrence; multimillionaires have a divorce rate that's less than onethird the national average, according to an informal survey by Worth of the nation's leading divorce attorneys. When it happens, however, businesses and fortunes hang in the balance. "Divorce is the businessman's biggest deal, yet he acts like a 16-year-old kid," says Raoul Felder, the well-known New York City divorce lawyer who recently negotiated Rudolph Giuliani's $6.8 million settlement. Big money is in play. In Connecticut, Jack Welch squires around his new paramour while his wife, Jane, seeks a $450 million settlement. In early September, when Jack canceled their joint credit cards and didn't come up with the more than $120,000 a month in lifestyle costs that Jane said she was accustomed to (he forked over only $35,000 a month), Jane fired back. She filed a slew of documents outlining confi- .... dential details of Welch's lucrative lifetime post-retirement benefits from GE, suchasthe use of a Boeing 737businessjet, expenses for their palatial apartment in the Trump Hotel and Tower including property taxes, furnishings, a cook, and a wait staff, and prime seats for everything from the Metropolitan Opera to the New York Knicks and Yankees. In the current corporate climate, the revelations proved highly embarrassing to Welch and, perhaps more importantly, to GE. As we'll see later, intentionally putting pressure on the corporate employer of a recalcitrant spousecanprove a higWy effective tactic. A callfrom a chairman of the board asking a spouse to do whatever it takes to put a halt to public revelations that could hurt the corporate stock is often enough to squeeze out a highly favorable settlement for one side. The Welch case is hardly unique. Just scan the newspapers right now, from coast to coast, for more examples of high-stakes divorce. In California, Kirk Kerkorian's tennis pro ex-wife is suing the billionaire for $320,000 a month in child support. Down in Florida, NASCAR racing starJeff Gordon facesaccusations from wife Brooke's legal team that he's hiding $5 million in earnings. The nuptial nightmares of Tom and Nicole, Angelina and Billy Bob, J. Lo and Chris, and seemingly the rest of Hollywood are covered in the tabloid magazines the same way the NFL season is covered in sports magazines. Indeed, big-stakes divorces are often fought as contentiously as a contact sport. On one side are the favorites: They have the resources; they are the moneyed spouses-or the "in" spouses, in divorce lawyer jargon-and protect their territory as best they can. The underdogs are known as the "out" spouses. The ones on this side are weaker on paper but often bring desperation and a willingness to use any weapon in their arsenals. The out spouses tenaciously scrape for as much territory as possible. Two major factors can change a contentious divorce before it starts. First, a prenuptial agreement is almost always a good idea for people with significant assets or even those in line to inherit them (see "Sign This, Will Ya, Honey," page 95). It frames a divorce and usually limits how much can be contested. Second, when children and custody are involved, a vicious divorce is a losing proposition for both sides. Divorcing parties who don't take steps to separate custody issues from the fight for marital assets will not only scar their children forever but will ignite so much emotion that one spouse, or both, is likely to continue to fight regardless of economic interests. Big-stakes divorce casesareoften foughtascontentiously asa contactsport. I 90 WORTH NOVEMBER 2002 Still, Worth's survey shows that among people getting divorced who are worth more than $5 million, more than 80 percent settle custody issues but continue to battle over money. And only 20 percent of the rich get prenuptial agreements when marrying for the first time-a sure sign that when these marriages dissolve, legal skirmishes will ensue. So the divorce wars go on. Worth, therefore, has decided to look into the most valuable playbooks from both sides of the trenches. We cross-examined dozens of the country's best, most expensive divorce lawyers to garner definitive strategies for both the in and the out spouse (see "The Top 10 Divorce Lawyers," page 92). Perhaps the most valuable lesson we have learned is this: If you care about the financial outcome of a divorce, your best move is to find and consult the best divorce attorney (or attorneys-more on that later) you can, by yourself and in confidence, long before you actually plan to file. At least six months to a year will allow you to maximize your chance of winning a good settlement. The same strategy is true if you think that your spouse wants a divorce and you don't. As Mr. and Mrs. Illinois found out, divorce is a game you don't want to lose. =Jdf and Brooke Gordon Married:1994 Divorced:2002 Attorneys:Donald Sasser (his); Jeffrey Fisher (hers) The Stakes: The former Miss Winston is seeking half of an estimated $50 million fromthe NASCARsuperstar.She filedfordivorcein March, alleging marital misconduct. Since then, he's had the worst season of his career. ' TheCourtGambit IN: Try to stay out of court. When divorce cases ¥e in settlement negotiations, the financial aspects are virtually indistinguishable from a business negotiation over merger terms. You have lawyers. They bicker with the other side's lawyers. You say yes or no to each position movement and, ultimately, retain control over whether you want to consummate any given deal. In a court, however, it's the judge who has control. "It's like going to a roulette wheel in Vegas," say Edward Winer, Minnesota's top divorce barrister. Lynne Gold-Bikin, who practices in Philadelphia, adds, "In court, you shoot craps." Every divorce lawyer has seen random outcomes when a judge is all powerful. "No lawyer can tell a client what a judge will do," Winer says. The scary secret is that when it comes to valuing businesses or assets, most judges are fairly clueless. Here's the classic training for a family court judge: years as a public defender or a state prosecutor or perhaps years in the private sector working with lowerincome clients. Noble enough, but do you really want this kind of person ruling absolutely on your cash-flow fluctuations, onetime charges, or real estate tax liabilities and how they affect the value of your business or assets? OUT: "Peace through strength" is not just a Pentagon mantra. More than 95 percent of people involved in divorce cases settle without going to trial, according to our survey. But few of that large majority can expect to walk away with any kind of favorable out-of-court settlement without making clear their willingness to fight. "To settle, you have to prepare for litigation," Gold-Bikin says. Without this threat, an out spouse can get steamrolled. Thus, the first move of any offense-minded out spouse is to make sure, either by settlement or by court order, that legal fees are free-flowing. The request, called a fee application, is generally fairly easy: Unlike Disney v. the Corner T-Shirt Shop, in divorce )) Nicole Kidman and Tom Cruise Married: 1990 Divorced: 2001 Attorneys: Sorrell Trope (hers); Dennis Wasser (his) The Stakes: $150 million The Settlement: She got the California and Sydney homes; he got the Colorado estate and three planes. Other undisclosed payouts were probably much lower than they would have been if Tom hadn't walked out before the lO-year mark. Married: 1996 Divorced: 2000 Attorneys: Jeffrey Fisher (hers); Mark Luttier (his) The Stakes: $650 million The Settlement: She received $16 million, plus jewelry, art, furniture. and $22,000 a month in child support. The oil baron agreed to settle after his wife's lawyer asked the court to unseal a file that he wished to keep private. NOVEMBER 2002 I WORTH91 The Top 10 Divorce Lawyers CALIFORNIA Stephan Kolodny, Kolodny & Anteau, 310-271-5533. Philosophy: "Other than in a custody case, my job is to get you what you want by whatever legal means I can." Neal Hersh, Hersh. Mannis & Bogen. 310-7861910. Background: 26 years' representing dozens of Hollywood stars. CONNECTICUT Jeffrey Fisher Arnold Rutkin, Rutkin & Oldham, 203-2277301. Famous case: achieved an eight-figure settlement for Lorna Wendt, former wife of then GE executive Gary Wendt. cases, the courts are loath to let the richer party bleed the poorer one to death with legal fees. If there's a large gap in financial resources, the in spouse must cover both. Take the Kerkorian case. Lisa Bonder Kerkorian has a net worth in the $11million range, not shabby but grossly less than her ex-husband's estimated $7 billion. So after the wife retained Stephen Kolodny, perhaps the best-regarded divorce attorney in California, he promptly went to court and won a $225,000 payment from the casino magnate. Now Kerkorian gets to pay the man who is publicly and legally flaying him, and more may be coming: At press time, Kolodny was back in court looking for another $800,000. In most cases, this simple stroke shifts the advantage tremendously. A long court battle now hurts the rich spouses far more, since they're on the line for both sets oflawyers. (Kerkorian's massive wealth, however, may make him immune.) Time-in the form of endless motions, stall tactics, and the like-is now on your side. This fact alone often yields a fair settlement offer. FLORIDA Jeffrey Fisher, Fisher & Bendeck, 561-832-1005. Background: pit bull former prosecutor who tends to represent the less-moneyed spouse. Donald Schiller ILLINOIS Donald Schiller, Schiller, DuCanto, and Fleck. 312-641-5560. Background: former president of the Illinois Bar Association. MASSACHUSETTS Gerald Nissenbaum, Nissenbaum Law Offices, 617-330-9090. Background: former president of the American Academy of Matrimonial Lawyers. Gerry Nissenbaum MINNESOTA Edward Winer, Moss & Barnett, 612-347-0300. Philosophy: "Ifwe can minimize the emotion. the probability of a successful and earlier settlement is dramatically increased." Edward Winer NEWYORK Raoul Felder, sole practitioner, 212-832-3939, the best-known divorce lawyer in the United States. Philosophy: "Tryto stay away from lawyers, and try to resolve it yourself." PENNSYLVANIA Raoul Felder LynneGold-Bikin, Wolf,Block. Schorr, and Solis-Cohen, 610-278-1500. Philosophy: "It's cheaper to keep her. Short of that. it's cheaper to settle, but to settle you need to prepare for litigation." TEXAS Lindsey Short, Short & Jenkins, 713-626-0208. Philosophy: "The biggest mistake is taking a case and asking, How am I going to settle? The biggest question should be, How do I prepare for trial?" 92WORTHI NOVEMBER 2002 ForumShopping IN: If going to court is a gamble, then you may as well try to increase your odds by picking the right casino. Our federal system has created 50 separate divorce venues, and the differences among them are extraordinary. In New York, inheritances and prenup protections are almost ironclad. In neighboring Connecticut, inheritances can be thrown into the pot, and prenups are vulnerable. In Wisconsin, there's community property: Marital assets are automatically divided. In Minnesota, equitable distribution means the judge decides what's fair. In Florida, there's a hybrid: equitable distribution with a presumption of a 50-50 split. Then there's Texas, a state made for the in spouse. Alimony barely exists (an exception, passed four years ago for marriages of 10-plus years, allows a spouse with no assets or skills to receive up to three years' alimony, with a $30,000-a-year cap). It's the only state that will allow a binding jury trial in determining the value of assets or whether an asset is marital or nonmarital. Unlike in many states, the earner's reputation and earning potential are not treated as marital assets. Plus, it takes only six months of residency to gain standing. That residency is generously interpreted, as was the case for someone we'll call the Manhattan Cowboy. The Cowboy was an executive at an oil company in New York City who agreed to a transfer to Houston. He sent his wife down early to buy a house. Six months later, he was still in New York but retained Lindsey Short, current president of the American Academy of Matrimonial Lawyers, who promptly filed for divorce in Texas. He was granted jurisdiction, even though he had never moved. "It's not an everyday occurrence," Short says, "but it's not an isolated incident either." People can even forum shop within a state. In New York, an equitable-distribution state, Raoul Felder finds that upstate courts tend to think that one-third of the pie is fair for an out spouse, whereas in New York City, most judges are inclined to see things 50-50. In the case of someone with an apartment and a country house, Felder will swing the case accordingly, with one caveat: "Upstate, they're not as forgiving of dalliances." ..... _. ...h _. ... --_.- .... Once you've picked your forum, you can make the climate even more inhospitable, particularly in smaller regions: Welcome to "lawyer circling." Once you meet with a lawyer, he or she is forbidden from representing the other side, even if you decide not to retain that lawyer. Thus, many a moneyed spouse, realizing that divorce is on the horizon, will "interview" every good attorney in town; he or she may even put several on a modest "consulting fee." Felder says that "SOpercent of the big New York cases cross my desk one way or another." Once he or she actually files for divorce, the out spouse is left with slim pickings among the best attorneys. Felder recalls one client, a Hollywood star we'll call Baha Man, who filed for divorce in the Bahamas. Felder determined that there were only seven divorce lawyers in Nassau and had Baha Man meet with six before filing (the seventh was out fishing). His wife had little choice as to who was going to represent her. OUT: The same venue rules apply, and sometimes they can be turned on their head. An out spouse can initiate a divorce action as easily as an in spouse, so forum shopping is a two-way street. California is a community-property state, which generally splits marital assets 50-50, but it is also the anti-Texas: It has no limits on anything-alimony, palimony, or child support-and can make a person's future earnings power a marital asset. "This is where all the action is," California attorney Kolodny says. Equitable distribution often proves a crap shoot for both sides, but some states tilt the scales a bit. In Minnesota, for instance, if the results of a divorce would create "undue hardship" on one spouse, up to half of the in spouse's nonmarital assets, including inheritances, gifts, and premarriage assets, can be awarded to the out spouse, completely at the discretion of the judge. TheValuationGame IN: As anyone who has tried to purchase a business or investment property knows, valuing an asset is as much art as science. Just as the increasingly complex holdings of wealthy Americans make discovery a warlike process, it also creates headaches when trying to value marital assets. How much is a partnership in a real estate tax shelter or some promised future stock grant really worth right now? "The days of dividing up the stock portfolio are over," Short says. "You need reservoir engineers, real estate engineers, forensic accountants, certified valuators." You'll know you've found a good divorce lawyer if he or she carries a Rolodex of expert appraisers-some who tend to value highly, others who see the world conservatively-and knows whom to deploy when. Of course, if the out spouse follows the same strategy, these cases tend to turn into battles of dueling exper!S, leaving ajudge to decide. To avoid this, many couples agree to use a neutral appraiser. For the in spouse, this is a bit dangerous, because judges generally defer to the neutral party; thus, as during a trial, you're giving up control. The risk can be turned into an advantage if your lawyer engages in some preliminary investigation. Take the case of a manufacturing entrepreneur in St. Paul. A neutral expert was already in play when attorney Edward Winer took over as the entrepreneur's counsel. Winer did some homework: His firm hired its own expert to value the company. Winer's expert came back with a valuation of $1.75 million. When the neutral expert came back with a $1.1million valuation, Winer quickly reached an agreement. OUT: Lawrence Cummings ran a chain of Tampa-area nursing homes. Sixty days before his divorce, he had written a memo about how much his business could be sold for, pegging it at around $11million. Unbeknownst to him, his wife, Susan, had a copy. That came back to haunt him during their divorce, when he claimed that his company was worth about $250,000. Susan Cummings's lawyer, Jeffrey Fisher, then pressed his advantage by hiring Ernst & Young to back up the original memo. "Every piece of paper that predates the divorce is worth 10 times any piece of paper created after it," Fisher says. "And if your expert is consistent with the predivorce record, it's very compelling." The document-expert combo worked. In fact, maybe it worked too well. The judge valued the business at $11million and ordered the husband to pay his wife more than $6 million. Lawrence Cummings filed for bankruptcy to avoid paying his wife, and the two have spent the past six years fighting in appeals courts. ThePaperTrail IN: When dealing with complicated and/or myriad holdings, knowledge is power. Thus, most big-money divorce cases turn, in large part, on the discovery process. The classic defensive maneuver among shady tycoons and shadier divorce attorneys is to hide: hide assets, bury businesses, stash money with the new girlfriend. All flawed strategies. With so much at stake in big cases and so many of the classic tricks exposed over the years, a decent lawyer and a team of accountant bloodhounds will catch on, and a burned judge will respond with commensurate fury. Instead, the preferred tactic is just the opposite: Bury the opposition in paperwork. Asset determinations should be supported by boxes and boxes, even rooms and rooms, of material. This minimizes the risk of independent appraisal. Show them everything, and they're more likely simply to agree with your valuations. When the other side faces the prospect of long delays if they choose to examine every box and appraise every asset, many are inclined just to accept your figures. OUT: Perhaps if the Justice Department had hired some divorce attorneys, it would have sniffed out the current accounting scandals a few years earlier. "I knew about Enron years before other folks did," divorce lawyer Lindsey Short says with a smile. In 1995, he was representing the husband of a "very, very senior" Enron corporate officer and requested a cache of deferred compensation documents. He received only about half of them. So Short sent in the hot tool in divorce litigation, forensic accountants-halfbean counters, half private investigators. According to Short, the path for his four green-eyeshaded bloodhounds started with sniffing around Enron human resources, moved to a compensation committee that controlled off-the-books plans, delved deeply into the company's lO-Ks NOVEMBER 2002 I WORTH93 =Patrida Duff and Ron Perelman Married:1994 Divorced:1998 Attorneys:many, many (hers); Adria Hillman(his) The Stakes: $6 billionThe Settlement: After a drawn-out battle, socialite Duff received at least $30 million.Legal custody of daughter Caleigh was awarded to makeup mogul Perelman in 20m, with parenting time split equally. ))Lorna and Gary Wendt Married:1965 Divorced: 1997 Attorneys:Arnold Rutkin, Sarah Oldham (hers); Robert Epstein (his) The Stakes: $50 million or $98 million, depending on who's doing the math The Settlement: An undisclosed amount, said to be in the eight figures, for Lorna Wendt, was reached after a lengthy appeals process. TimingIsEverything «Rudolph Giuliant and Donna Hanover Married: 1984 Divorced: 2002 Attorneys: Raoul Felder (his); Helene Brezinsky (hers) The Stakes: Rudy is expected to earn about $8 million this year, with much more to come in the future. The Settlement: $6.8 million, the apartment, and $22.000 a month in child support. Rudy's income swelled after he filed first. 94 WORTH I NOVEMBER 2002 and into the sub plans of profit-sharing pensions. Finally, pay dirt: a $7 million to $9 million off-the-books account. "Two days before trial, I threatened to subpoena [Enron CEO] Ken Lay to come down to court and start testifying," Short says. "We threatened to put on the record all these off-book entities." Short had discovered the exceedingly liberal accounting practices that would later sink Enron. Within hours, the Enron officer offered her husband 60 percent of the community property, a settlement yielding him about $7 million. If forensic accountants are a discovery rifle for the in spouse, some out lawyers also employ a discovery shotgun: the possession order. This is a preemptive strike, allowing the out spouse to take possession of all financial records. Neal Hersh, one of the best Los Angeles lawyers, with well-known clients such as Oscar-winner Halle Berry, has used the shotgun numerous times, including on behalf of the singer June Pointer and the wife of a real estate developer we'll call Mr. Malibu. Within minutes of gaining a possession order, Hersh engineers a SWAT-like operation involving about 10 team members: security, movers, on-site lawyers, and videographers. The police are notified. This quick response helps prevent any Arthur Andersen-style document shredding, and it also helps from a negotiation position. In the Malibu case, by taking all of her husband's business files (she thought some of his property was being listed in other people's names), Mrs. Malibu temporarily handcuffed his business. Much as in the case of Mr. and'Mrs. Illinois, however, playing hardball has repercussions. Despite the SWAT team tactics, the Malibus reconciled. But one of his real estate associates later sued Mr. Malibu (and thus, indirectly, Mrs. Malibu), using her public declarations against him. IN; Wonder why Tom Cruise walked out on Nicole Kidman? The answer may lie in the calendar. In many states, courts differentiate between short marriages and long ones. In Connecticut, for example, a 20-year marriage usually carries a lifetime presumption, along with alimony until death or remarriage for the poorer spouse. In California, where Hollywood's golden couple lived, that benchmark is 10 years. Cruise walked out nine years and 11 months after their wedding. In California, the clock on the marriage-and on marital property-stops at separation. The financial difference between a short and a long marriage can be staggering. In Cruise's case, short-marriage alimony would be mandated at a bit less than five years (half the length of their marriage), while another month would likely have mandated the lifetime alimony. Timing involves more than length of cohabitation. In California, marital standard ofliving is also a big deal, and it's usually based on recent lifestyles. So if you're contemplating divorce, spend less. Presplit spending can be strategic. Don't remodel a house you're sure to give up, but you might want to pour a lot of money into a new office you'll surely keep. OUT:Timing goes both ways too. Stuart Roseman was a Bostonbased Draper Labs engineer making about $80,000 a year when, _..0-.... ---- in 1999, he and a friend invented Gamesville.com, a Web site that offered free online poker and other games at frustratingly slow speeds so that banner ads could effectively be sold around them. It was a stupid business model in retrospect, but like many successful dot-commers, Roseman had good timing. He managed to secure angel financing just as he was about to go under, then venture money, and finally a February 2000 deal with Lycos that yielded him $72 million in Lycos stock. Beth Greenberg understood timing too. She was Roseman's wife, and they were separating when Roseman was just starting Gamesville. In California, marital property may end at separation, but in Massachusetts it's all in the pot until the divorce is final. And so, with no way to appraise fairly Roseman's skyrocketing-by-the-month business and a willingness to take a chance, she decided to wait it out. "We were going to drag this on as long as we could," says her lawyer, Gerald Nissenbaum. Roseman's six-figure offer jumped to $3 million as the company appreciated. Post-Lycos, he wound up giving her $16 million in stock. Greenberg matched the timing strategy to her home- state and her husband's financial state, and in doing so she wound up with a windfall. The same strategy can work in California if applied preseparation.just as an in spouse such as Cruise might leave before hitting certain benchmarks, the out spouse might intentionally remain in a bad marriage for an extra year or two if it means long-marriage status. "Depending on which side they're on," Kolodny says, "I tell them they need to get this filed now, or else stick it out." ExtraPoints Most often, the final answers in a contested divorce lie in a settlement that aids both sides. Those who are seeking a compromise should keep several things in mind. First, it bears repeating that children should be kept out of the process entirely. Second, let Uncle Sam pay for as much of your divorce as possible. Alimony is tax-deductible. In cases in which the two sides have different tax rates, the in spouse should keep as much cash and other aftertax assets as possible, even if this means paying out a disproportionate amount of alimony. Do the math: For the moneyed spouse in a 45 percent combined federal and state tax bracket, a $10,000 liquid asset is worth more than a $15,000 alimony liability (which costs only $8,250 after tax). To the out spouse paying 25 percent in taxes, that $15,000 in alimony is still worth $11,500 after taxes; that's better than the $10,000 asset. Finally, it's essential for both sides to minimize emotion. Virtually every divorce lawyer in America can recall cases in which one overwrought spouse tried to torture the other by calling the IRS, the business competition, or the new paramour. The results are rarely good for either side. Divorce is a miserable experience that ranks second only to the death of a child in terms of the stress it induces. But if the only issues remaining on the table revolve around money, then at its core it's all business. 8 RandallLaneis a contributing editor to Worth.