"There's no other area of the law -- none -- where there is as much discretion," says Eleanor Alter, twirling a bracelet that looks like worry beads in her aerie high above Sixth Avenue. "Even in criminal stuff, you have sentencing guidelines. Here, unless the people settle, the judge gets to decide who gets the kids, how often the other one gets to see the kids, asset division, child support, maintenance, how long a time the moneyed spouse has to pay out, whether the prenuptial agreement is going to be enforced or not! The lawyers are crazed because we don't know anything. Everything is a crap shoot."
But it's so much easier, safer -- and more effective -- to complain about lawyers than about judges. In 1992, Mark Green, then head of New York's Department of Consumer Affairs, released a scathing report that accused divorce lawyers of a litany of abuses and led to the institution of new rules to protect clients from them (including a ban on sex with clients and on billing clients for discussing fees). But despite Green's urging, judges retained their right to exclude divorcing couples from settlement conferences, though they didn't get additional power to enforce their rulings. So, though no one with any sense says so out loud, behind their hands, lawyers whisper that New York's real problem may be with the bench and the profoundly imperfect laws it is charged with enforcing.
They whisper because complaining out loud has proved disastrous. In summer 1995, lawyers from the local chapter of the American Academy of Matrimonial Lawyers, including Norman Sheresky, Eleanor Alter, and Bob Cohen, complained that Phyllis Gangel-Jacobs, an opinionated divorce lawyer turned judge, was biased against husbands. "She made no bones about having an agenda; she wanted to protect women," one lawyer says. Adds another, "If you represented a husband, you knew you were deep in a ditch and you would try desperately to settle." Thirty-nine other lawyers promptly signed a letter supporting her, and the revolt resulted in a slap at the uppity lawyers: Three judges -- including two the lawyers liked -- were replaced.
High-end divorce regularly involves controlling people who've lost control of their lives to judges and mightily resent it. Divorce lawyers savor a remark attributed to a judge who worked on one of Ronald Perelman's three divorce actions. "This man is worth $6 billion," he supposedly said, "but if he wants to piss, he needs my permission."
That's why a good lawyer will always press for settlement -- even if it means contradicting clients or playing a waiting game until they're ready to listen. "All day long I tell guys, write her a check," says Norman Sheresky, in his signature bemused whisper. "They say, 'I'd rather pay you.' Hundreds of thousands of dollars later, they say, 'Give me the pen.' " Bob Cohen goes so far as to claim that he makes more money settling. "There's somebody else right behind you," he says. "And if I do it relatively quickly, I can get a success fee in excess of billable hours." Adds David Aronson, "The people we want to represent appreciate resolution without destruction." Not only that: "We can divide assets with a scalpel. Judges do it with a cleaver."
"I have a case now where the father of a child is so angry at the mother for not marrying him that he has spent nineteen days on trial over whether the child support should be $1,900 a month or $1,000 a month," says Beslow, a weight-lifting Yalie with a self-confidence bordering on arrogance. "He has now incurred in counsel fees more than the difference he would have paid for the rest of his daughter's minority." Beslow grimaces at the thought of all the money he's made. "It's a very expensive way to act out one's anger."
"My friends joke, 'Is business good?' says Robert Cohen. "We do a dirty business, but we change people's lives for the better."
Reluctantly, lawyers will admit that they can be obstructive, too. Some hide their deficiencies by being ornery. Others overlitigate and churn motions to generate fees. Whether they need the money to pay their overhead or are simply greedy, says Beslow, "there's a built-in incentive to keep litigation going by either purposely misadvising clients or telling them what they want to hear, which solidifies the relationship but ensures conflict."
But usually, they blame their clients. Promised anonymity, several of Patricia Duff's former lawyers say she's walked away from acceptable settlement offers. Duff angrily insists that's not the case. "It's insane for anyone to think I don't want to settle. I'd walk away in a minute if I could be free from the anxiety of constant litigation hanging over my head and from the fear of wrenching interference in my mothering of daughter Caleigh. But there's an inherent conflict for the lawyers: What's best for the client is not necessarily best for them."
Duff has been around the block with twenty lawyers ("representing the cream, the milk, and the skim milk of the matrimonial bar," as Justice Franklin Weissberg put it in court one day) in three years of grinding litigation and has been branded -- divorce insiders call her type "disgruntled ex-spouses" -- as a result. "How can you represent someone who doesn't trust you?" one lawyer says. "She'd listen, go home, and change her mind. Who is to blame but the lawyers? It's too bad, because there's no way Perelman can win custody, but she can lose it."