Two Divorce Lawyers Watch "Divorce": Ep. 4

What the show gets right and wrong about divorce in New York

by Marcy Katz and Tom Kretchmar

The first thing we learn from the fourth episode of “Divorce” is that Robert and Frances have decided to proceed through mediation rather than through lawyers. The episode opens at the end of their first session. We don’t learn much about the mediator other than that she disdains lawyers; she claims mediation avoids “a bunch of lawyers stirring up trouble and burning through all your money.” (Divorce mediators tend to be therapists or lawyers.) She also gives Robert and Frances two homework assignments: to prepare financial disclosure statements, and to tell their children that they’re getting divorced.

Written, sworn financial disclosures (“statements of net worth,” in divorce lingo) are a required part of the divorce process in New York. Each spouse fills out an official form, and must disclose their income, assets, and liabilities, as well as a detailed budget analysis. These documents play a major role throughout the process, from early efforts to get temporary child support and spousal support all the way through to trial, should one become necessary. Generally speaking, they’re the most important document in any divorce.

There can be serious consequences for not producing a statement of net worth. In the notable 2006 child support case Brim v. Combs, the appellate court that governs Westchester County held that the child’s expenses alleged in Ms. Brim’s statement of net worth would automatically be treated as accurate and true due to the fact that the father of her child, Mr. Sean “P. Diddy” Combs, had failed to make his own financial disclosures.

Completing a statement of net worth can be frightening and paralyzing. Spouses are suddenly confronted with serious questions that they may have spent months, years or a lifetime avoiding: how much money do they really have, owe, earn, and — often the most shocking of all — spend? The requisite review of bank records, credit card statements and bills to arrive at these answers can be a rude awakening. In episode four, it sends Robert into a tailspin.

Robert has a street-side meeting with his accountant (who works out of his car) and learns, to his chagrined disbelief, that he’s “hemorrhaging” money. When Robert can’t make sense of his accountant’s written analysis of his finances, the accountant dumbs it down for him: “You bought way too many houses, and you’ve spent way too much fixing them up, and now nobody’s buying them, so, you know, simple math.” He offers Robert some parting advice: “Stop spending money like you actually have money — because you don’t.”

Robert’s takeaway is that he’s flat broke, and he goes into an absolute panic because he believes that, as the husband, he will, as a rule, automatically owe Frances at least “half of everything” he has. He springs into action with a harebrained get-rich-kinda-quick scheme to convert a 200,000-square foot warehouse into multi-activity children’s “fun space.” He also starts pinching pennies everywhere he can: at the restaurant where he and Frances first try to tell the children about the divorce, he ends up more focused on convincing everyone to have dessert at home in order to spare the expense of the restaurant’s $12 ice cream sundaes (“We’ll just get some cream out of the refrigerator, whip it up, put it in the freezer, it becomes ice cream; throw in some chocolate chips, it’s the same thing, but it’s like, 50 cents”). (They eventually manage to break the news at home, where Robert discloses it to their not-at-all-surprised children with an impressive maturity and grace that was so cooperative and constructive it seemed, perhaps, to foreshadow success on the mediation front.)

By the end of the episode, Robert’s humming a different tune about his financial outlook, thanks to his new friend, the broker for the warehouse space. Over drinks, the broker corrects Robert’s mistaken belief that the husband in a divorce is automatically financially devastated by the process, and explains — as we have indicated previously — that Frances’s higher income may in fact result in an outcome for Robert that’s not just survivable, but altogether lucrative. (In this scene, we finally get confirmation of something we’ve speculated about for a while now: according to Robert, Frances has made “a hell of a lot more money” than he has over the last couple of years. Earlier in the episode we catch further insight into Frances’s headhunting job, spying her running a meeting in some sort of management role.) At first, Robert rebuffs the broker’s suggestion that he reach out to a divorce lawyer, claiming he’s committed to the mediation process. But by the end of the episode, Robert skips the second session so he can meet with a divorce attorney, giving us a pretty clear idea he’s decided the broker was right.

Mediation doesn’t work for everyone: when there are no children and minimal money is at issue, it can be successful. In other scenarios, mediation becomes much more complicated, especially if the spouses are not on equal financial footing, and/or have mismatched negotiating talents. It’s helpful, in that situation, for each spouse to also have an attorney to cross-check things with during the mediation process. This allows each party to understand the law and the reasonableness of their position along the way while trying to work cooperatively towards an amicable resolution.

Unfortunately, an all-too-common result of the mediation process is that spouses reach a tentative deal and think they feel great about it until, prior to signing the paperwork, they run the deal by a lawyer (or a divorce-savvy friend), find out they’ve gotten an unfair deal, and then walk away from mediation to start the whole process over in an adversarial process, through lawyers. A significant amount of time (months, sometimes years) and money has already been invested at that point, only to go back to square one. (Unless and until a mediation agreement has actually been signed, nothing that comes from the mediation process is binding on either spouse.)

Alternatively, two competent and reasonable attorneys can, without a mediator ever being involved, guide divorcing spouses to a fair and efficient result, often without any fireworks along the way. Whether Robert and Frances manage to avoid fireworks remains to be seen, but, as we said after episode one, it seems unlikely that they would be gifted a drama-free divorce as characters on a primetime television show.

Marcy Katz and Tom Kretchmar are New York divorce lawyers. They work at Chemtob, Moss & Forman, LLP, a matrimonial law firm based in midtown Manhattan.