The Divorce Papers: A Novel (23 page)

TRAYNOR, HAND, WYZANSKI

222 CHURCH STREET

NEW SALEM, NARRAGANSETT 06555

(393) 876-5678

MEMORANDUM

Attorney Work Product

Mia Meiklejohn’s short math exercise hits the nail on the head. It should go in your letter, right at the top. She’ll make an excellent lawyer. She’s a natural—and she wants to win.

Her letter is more literate and much more literary than most, but substantively, it’s pretty much what you’d expect. Most divorcing clients say terrible things to their lawyers about their spouses. And they say even worse things to each other, often in front of their lawyers. Body parts figure prominently.

She’s right about her father. If we let him loose, he will take Durkheim apart, and as she says, Durkheim won’t know it until it’s over and Bruce Meiklejohn has handed him his head on a tray. (Different body parts, same modus operandi.) He didn’t get to be so successful by ranting against Jews, though early in his career, it may have served him. People underestimate him. Never do that, Sophie. You’ve never met him. Under the right circumstances, he can be highly engaging. Maybe I’ll set up a lunch. It might do you good. It might do him good.

I do know the Keats poem; I read it in English 101 my freshman year at Mather. Maybe we old guys were better educated back then, but that’s no excuse for not having read Keats. And you can’t blame Columbia for not knowing that poem. (Doesn’t Columbia still have a Great Books curriculum?) People over 21 are allowed to read Keats. Your education doesn’t stop when you graduate.

I’m sure she knows you know enforcers. I bet her father knows them too.

I’ve gotten used to the rich; they rarely surprise me anymore. I knew a woman who had monogrammed paper tissues, white with three blue initials. That did surprise me.

Recently divorced women buy new beds; recently divorced men buy big-screen TVs. You tell me what it means.

TRAYNOR, HAND, WYZANSKI

222 CHURCH STREET

NEW SALEM, NARRAGANSETT 06555

(393) 876-5678

ATTORNEYS AT LAW

MEMORANDUM

Attorney Work Product

Ms. Meiklejohn and I came up with the following bottom-line settlement proposal. At the end, I’ve attached a series of charts summarizing the proposal. Their purpose is to provide snapshot views of the various allocations and distributions. Their redundancy is offset, I hope, by their usefulness. (I’m being maniacally zealous, aren’t I?) Our counteroffer will be larger, not outrageous but excessive. Ray Kahn needs to win some, so we’ll need room to retreat. I’ll draft it after you’ve reviewed this.

CUSTODY

Ms. Meiklejohn will ask for joint legal custody and sole physical custody of their daughter, Jane, with generous visitation for Dr. Durkheim, including weekends and holidays. Given the demanding schedule he follows at work, joint physical custody would not be in Jane’s best interests.

INCOME & EXPENSES ALLOCATION

Child Support

Ms. Meiklejohn will ask for $72,000 in child support for the first year, the amount to increase (or decrease) after that, proportionate to the increases (or decreases) in Dr. Durkheim’s income. As an example, if Dr. Durkheim’s salary increases by 8% next year, child support will increase by 8%. Out of this allotment, Ms. Meiklejohn will pay for Jane’s school fees,
clothes, food, vacations, and other ordinary expenses. Child support will continue until April 23, 2011, Jane Durkheim’s 23rd birthday, or the last day of the month of her graduation from college, whichever event comes first. These alternative termination dates allow Jane to go through college on the five-year plan.

The child support figure represents just under 20% of Dr. Durkheim’s gross income. Narragansett has Child Support Guidelines, but they do not apply if the family income is above $40,000 a year. At $40,000, the amount payable for four or more children under the guidelines is 30% of the
family’s
gross income, with each parent paying a part of the total, proportionate to his or her income. The figure for one child is 20%.

College Costs

Dr. Durkheim will pay the cost of tuition for the college of Jane’s choice; Ms. Meiklejohn will pay the cost of room, board, and expenses. Any contribution from one of the party’s employers will be credited to the obligation of that party, reducing his or her payment accordingly. For example, if Dr. Durkheim’s employer contributes $10,000 toward tuition totaling $35,000 (estimated tuition for Mather University in 2006, Jane’s projected freshman year), Dr. Durkheim will be required to pay only $25,000. If Ms. Meiklejohn’s future employer contributes $10,000 toward tuition, that amount will be deducted from her obligation for room and board (estimated at $20,000), reducing her payment to $10,000. If both parties, as now, are employed by a single employer who gives only one scholarship per child annually, each party will be credited with one-half the total, regardless of who made the formal application; in our example, each will be credited with $5,000.

Each year on her birthday, Jane has received a gift of $10,000 from her grandfather, Bruce Meiklejohn. By the time she is 18 and ready for college, that fund, if he continues to make the annual gift, should be worth $350,000 or so. Dr. Durkheim may insist that this money be used for college, reducing both his and his former wife’s obligation.

Traditional Alimony or Spousal Support

Ms. Meiklejohn will ask for $48,000 in alimony for seven (7) years, to compensate her for the lost income and employment opportunities of the last seven (7) years. The seven-year cutoff also coincides with Jane’s
graduation from high school. Alimony will automatically cease upon her death, remarriage, or employment at an annual salary of $48,000 or more. (This dollar figure was pegged to her highest salary, $47,000, which she earned in 1991.)

Rehabilitation Alimony

Ms. Meiklejohn will ask for rehabilitation alimony of a maximum of $30,000/year for three (3) years ($90,000 total) to pay law school tuition at Mather (less at Narragansett). There will be no automatic cessation event such as marriage, except not attending law school or dropping out.

Compensatory or Reimbursement Alimony

Ms. Meiklejohn is willing to relinquish all claims to compensatory or reimbursement alimony, including any claim for compensation for Dr. Durkheim’s medical degree, in the final settlement if the other terms are satisfactory.

Summary on Impact of Spousal and Child Support Offers

Under this proposal, Ms. Meiklejohn would receive a total of $150,000 a year from Dr. Durkheim in alimony (including law school tuition in the form of rehabilitation alimony) and child support, of which the $78,000 in spousal support and rehabilitation alimony would be taxable to her. After taxes of approximately $20,000, her net income would be $130,000. Ms. Meiklejohn’s expenses post-divorce are estimated at $173,300, $42,300 more than her net income. The difference will be made up by the interest income on her investments, reductions in expenses for travel and clothes, and summer employment during law school.

Having paid his wife $150,000, Dr. Durkheim would have $220,000 left. He would have to pay taxes on the $72,000 child support, but not on the $78,000 in alimony, which would be taxable to Ms. Meiklejohn. His total tax bill would probably be $60,000 (assuming deductions for property taxes, mortgage, and alimony), giving him an after-tax income of approximately $160,000. With his living expenses estimated at $162,500, he has a shortfall of only $2,500. I spoke with Ms. Meiklejohn about hiring a forensic accountant to do precise tax and interest analyses, but these rough figures show that Dr. Durkheim would not have to curtail his standard of living or give up the house. Ms. Meiklejohn would take over many of the expenditures that formerly came out of the pooled family income.

Medical Insurance

Ms. Meiklejohn will pay $3,200 for a COBRA account to continue her coverage under Dr. Durkheim’s plan. Jane will continue on Dr. Durkheim’s policy.

Automobiles

Ms. Meiklejohn will take the 1997 Saab, the car she normally drives. It is two years old and has two years left on its loan. Its original cost was $32,000. Its current value is $22,000. Dr. Durkheim can keep the 1999 Audi, which is under a four-year lease. The car cost $68,000. It is worth now more than $60,000.

SEPARATE ASSETS

Property acquired by inheritance and/or before marriage is the parties’ separate property and shall remain so. It is not subject to equitable distribution.

Ms. Meiklejohn’s Separate Assets

Before her marriage, Ms. Meiklejohn inherited a house on Martha’s Vineyard from her mother. She owns this house as a tenant in the entirety under a trust with her father. Her interest is not transferable, nor is it vested; it depends on her outliving her father, a statistical likelihood undercut by the fact that her mother died in 1979, at age 46, of breast cancer.

Dr. Durkheim’s Separate Assets

In October 1998, Dr. Durkheim inherited from his mother $16,000 in cash and a 1989 Honda, which he donated to a charity. The money was deposited in a joint savings account. It will be subtracted from the total amount in the joint savings account prior to division and given to Dr. Durkheim.

JOINT ASSETS

The governing principle in the division of joint assets and liabilities is equitable distribution. Title does not determine ownership. All the assets to be divided were acquired during the marriage. In making the division, we recognize the parties’ intentions and expectations during the marriage, Ms. Meiklejohn’s lost income and employment opportunities, her financial contributions in the early years of their marriage, and Bruce Meiklejohn’s annual $20,000 gifts to the couple for 16 years.

Family Residence: $240,000

The family residence at 404 St. Cloud cost, with the land, $375,000 to build. Dr. Durkheim and Ms. Meiklejohn put down $125,000 and took out a 30-year 8% mortgage for the remainder of $250,000. To date, virtually none of the principal has been paid off. Since they built the house, land values in New Salem have increased greatly, and the current value of the home, according to Laura Bucholtz of RealProperties Inc., is now $525,000. If the home were sold this year and the mortgage paid off, the Durkheim-Meiklejohns would recover their $125,000 down payment and realize a clean profit of $115,000 (the difference of $150,000, less the Realtor’s fee of $31,500, calculated at 6% of the sale price, and closing costs of approximately $3,500), giving them $240,000 cash in hand. Ms. Meiklejohn is willing for Dr. Durkheim to keep the house, but she would like to recoup some of the down payment of $125,000 and realize some of the profit of $115,000. She will ask for $120,000, half the current equity. In lieu of forcing a sale, she suggests receiving this amount from stock market investments. Under this arrangement, Dr. Durkheim assumes the mortgage.

Stock Market Investments: $700,000

These investments should be divided equally, each receiving $350,000. If Dr. Durkheim wishes to keep the house, Ms. Meiklejohn suggests recouping her proposed $120,000 share of the equity in the St. Cloud Street house from these investments. This amount should be subtracted from Dr. Durkheim’s share of $350,000 and added to her share of $350,000, leaving him with $230,000 and her with $470,000.

Dr. Durkheim’s 401(k) Plan: $300,000

This account should be divided equally, each party receiving $150,000.

Dr. Durkheim’s TIAA-CREF Retirement Accounts: $600,000

This account should be divided equally between the parties, given the assumption during the marriage that Dr. Durkheim would accumulate a retirement fund for both himself and his wife. Each party receives $300,000.

Treasury Bills: $90,000

These investments should be divided equally, each party receiving $45,000.

Joint Savings Accounts: $80,000

In principle, these accounts should be divided equally after subtracting $16,000, which represents Dr. Durkheim’s inheritance from his mother, giving Dr. Durkheim $48,000 and Ms. Meiklejohn $32,000. In fact, this account holds only $16,000, the remaining $64,000 having been withdrawn by Ms. Meiklejohn to cover her expenses during the negotiation period in response to Dr. Durkheim’s decision to close their joint checking account. The $16,000 goes to Dr. Durkheim.

Household Furnishings, Objects & Artworks: $100,000

The value of the household furnishings is skewed by the value of three items that Ms. Meiklejohn thinks she and her husband will both want: a Persian rug ($45,000), a Jenny Holzer piece, and a Cindy Sherman photograph. They also own some very good paintings by other artists (a Wolf Kahn, an Ephraim Rubenstein, a Robert Sweeney, a Boris Chaliapin) and some ’50s modern furniture (a particularly nice Eames shelf), but Ms. Meiklejohn expects they will be able to divide them without too much acrimony. Ms. Meiklejohn would give up the Persian rug (which was a wedding gift from her grandparents) for the other stuff. She doesn’t think Dr. Durkheim likes either the Holzer or Sherman (she bought them in the late ’80s), but he knows their value. Bruce Meiklejohn will want his daughter to keep the rug and will, she believes, be annoyed (and incredulous) at her choice.

EQUITABLE DISTRIBUTION WITH SALE OF FAMILY RESIDENCE