Live-In Divorce

From the February 5, 1990 issue of New York Magazine.

The man who is divorcing Judy Lazarro* sleeps and works in the room directly above her bedroom. Until about three every morning, she gets only a fitful rest, for she’s constantly startled awake by the squeak of his chair casters, the deliberate thump of his coffee mug on the desk. When his footsteps sound on the stairs, she jolts upright. He looms on the landing, casts her a baleful look, and then descends to the kitchen for yet another cup of coffee

Judy and Tom* have lived this way for the eight months since they hired their divorce lawyers. There is no settlement in sight.

Whatever happened to the divorce scenario we used to see in the movies—husband packs suitcase, the couple’s eyes meet in pain and regret, and then, with the slam of a door, they begin learning to live apart? It is gone, say the experts, for many reasons—flat housing sales, the difficulty of finding an affordable apartment, the high cost of living, and laws and recent court decisions on the division of property, occupancy rights, and custody and child support.

The War of the Roses is an absurdist take on a modern reality. Couples of every social stratum are forced to stay together in hostility these days, says matrimonial lawyer Raoul Lionel Felder, “whether they live in a mansion on Fifth Avenue or a rent-control on Avenue A.”

Stanford Lotwin, of Tenzer, Greenblatt, Fallon & Kaplan, estimates that since 1980, the number of couples living in the same house while they’re negotiating a divorce has increased by one third. But a divorce-law columnist for the New York Law Journal—Leonard Florescue, of Ruskin, Schlissel, Moscou, Evans & Faltischek—thinks things are even worse: He estimates that the number of such arrangements has jumped by 50 percent in the past few years.

The live-in divorce, laments Felder, “is barbaric—one of the tragedies of the whole system.” New York State courts, unlike many others, do not routinely award temporary exclusive occupancy of a residence to one party. In New York, there is no way you can get a spouse out, Felder explains, without showing that there’s danger of physical violence. He sighs. “The law loves a broken finger.”

For the most part, people living this hellish life are hanging on for compelling reasons: because they can’t afford to leave or because leaving would jeopardize their chance to win custody of their children. But some have lesser motives: They aim to harass their mate into a more favorable settlement, or they simply like their house and are determined to keep it.

Hanging on is the tactic their lawyers advise—especially if parents are fighting over custody. According to Florescue, appellate decisions in the First and Second Departments (whose rulings affect most people in the metropolitan area) clearly indicate that the courts are unlikely to award custody to the parent who moves out. Declares lawyer Betty Levinson, most of whose clients are women, “I say to mothers, ‘You never leave your kids.’ “

And the child-support guidelines that went into effect in New York State this past September make it likely that even more couples will stay together while they do battle in the divorce court. The guidelines require non-custodial parents to contribute 17 percent of their gross income (usually with only minor adjustments) for the support of one child, 25 percent of their income for two. “It’s one of the least well-thought-out pieces of well-meaning legislation I’ve ever seen,” Florescue says. He, like Harris Grossman, a partner in the Nassau County firm Wolfson, Grossman & Austin, believes such high requirements will steer some fathers to seek custody as an economic benefit—inciting more custody battles and trapping even more opponents in the same house.

The twelve people interviewed for this article have lived with their estranged mates for eight months to three years after retaining counsel and beginning divorce negotiations or litigation. Though many had long been unhappily married, their need to get out—and get on with their lives—became a driving force as soon as they hired their lawyers. “I feel as if I’m in limbo” was the heartfelt complaint of all parties, even those who gave as their reason for staying, “It’s my house. Let him [her] leave.”

Whenever possible, both husband and wife were interviewed. But in some cases, only one side of the story can be told because delicate settlement talks—indeed, even the safety of the interviewee—would have been jeopardized had the other partner known his mate had spoken to New York.

Judy Lazarro has to stay with Tom until she gets her divorce: She has three daughters under twelve years old and no money of her own. “Tom always kept me on a tight leash,” she says; though his construction company brings them an income of $200,000 a year, Tom handles it, and the bank account is in his name. Judy, 39, has not held a job since her children were born; she can neither move out nor force him to leave their $900,000 Connecticut home.

She and Tom don’t speak, except to call each other “jerk” and “ass- - - -.” When Judy prepares food for the children, Tom comes into the kitchen and eats out of the pot. And once, after he’d failed to give her the food money the court had ordered him to provide, Judy found herself snatching a sandwich from his hand. “When you’re fighting over a piece of ham and cheese,” she says, “you know you’re in trouble.”

Though Tom was physically abusive for years, Judy says, it is he who is suing for divorce (for cruel and inhuman treatment). Each has accused the other of having a drinking problem. One night, he dragged her home from a bar and beat her so badly that a judge gave her an order of protection and an award of $400 a week in maintenance. Not enough to pay for a decent place to live with her three children, she says—and even if she could find an affordable place, she has no money for the security deposit and the first month’s rent.

“If I had the money to leave,” she says, “I’d be gone.” Tom’s settlement offer is four years’ maintenance, but that’s too little, Judy says, for someone who has almost no job experience. She’s fighting for more.

Eight months of living with an estranged mate has toughened Judy considerably. Whenever she turns down a settlement offer, Tom complains that she’s just running up the lawyers’ bills (he’s paying both lawyers). She tells him, “Not to worry; there’s plenty more where that money came from.” “That,” she says triumphantly, “drives him crazy! And one day, when he called me a f- - - ing ass - - - - in front of the kids, I cracked him across the face. Now he’s threatening to get an order of protection against me.”

On several occasions, Tom took the ignition wires out of her car, so now she keeps a supply in her closet. Asked whether she knows how to install them, she gives a short, dry bark of a laugh: “I do now!”

Like other wives—and husbands—in her situation, Judy uses humor as a survival mechanism. The laughter is of every dark description: bitter, ironic, giddy, teetering at the abyss. The next moment (at least for Judy, as for most of the wives), there are tears. “This is the worst thing I ever lived through,” Judy whispers. “This is death.”

Raising the Level of Discomfort: “The house seems to get smaller every day,” a wife complains. That’s the idea: When the strain gets unbearable, the spouse will have to give in.

Staying together gives spouses the opportunity for exquisite harassment of the mates they have come to despise. Felder tells of the man who would snap his fingers in bed to keep his wife awake (yes, they were still sleeping in the same bed) and of another who kept a ball of twine and a pair of gloves on his bedside table—always with a “rational” explanation. Florescue knows of a man who lined his wife’s bed with used Kitty Litter. In most cases, however, the torture couples inflict on each other is subtle, slow, and wearing.

During the three years Larry* and Annie Kornberg* shared their house while getting their divorce, Larry, a tall, gangling man of 40 with a bohemian beard, was tormented by jealousy. Once a jazz trumpeter, now a systems analyst with a modest income, Larry hunches forward to tell his side of things, twisting his thumbs hard against each other.

One day, after fourteen years of marriage, Annie—who had asked for a separation several times—handed him a letter from her lawyer requesting a divorce. She moved into the den, saying she had to “find herself.” But, Larry says, “I knew there was someone else,” a man in their neighborhood—a fact that Annie now confirms.

Larry refused to move, and his lawyer agreed that staying was his best chance of protecting his equity in their $200,000 Rockland County house. Since Annie was unwilling to sell it (their two daughters needed stability, she said), his lawyer warned that she’d feel no pressure to reach a settlement if Larry moved out. As it happened, Annie’s lawyer was giving her the same advice: Staying in the house would be the fastest way to wring a settlement from Larry.

For three years—with one break—they tensely shared their turf, Larry “living” in the bedroom and going out to a restaurant for all his meals. When Annie cooked for herself and their children, the smells maddened him. In the morning, when she came into the bedroom to get her clothes, she’d turn on the light and slam the drawers, waking Larry, who went to work in the afternoon; he could get no sleep until she’d gone.

Whoever got home first at night would take off, leaving the “loser” with their girls, ages ten and eight, for the evening. Recalling this nightly contest, Larry is ashamed. “I did it to get even,” he says. “It upset me because I was running away from the kids. One part of me said, ‘Forget her—take care of the kids.’ The other part said, ‘Beat her out.’ “

Most of the time he stayed in his room, seeing the children (both of whom were in therapy) only when he’d visit their rooms briefly to watch TV with them. “You can live in the same house with someone and miss them,” he says. His elder daughter left notes on his pillow: “I just wanted to say good-night. I love you.” The tic in his left cheek betrays his agitation. “It’s upsetting,” he says, “to look at them now.”

“My mind was running all the time,” he remembers. “Mostly angry stuff.” And Annie was so frightened, he says, looking puzzled and hurt, that she kept knives under the sofa cushions, though he’d never been violent.

“I began to keep knives under my bed,” Annie Kornberg said in a telephone interview, “after that one time he came home, drunk and angry, and raped me. He says he doesn’t remember it.” She adds her own details from those three years: the “scary” way he looked down at her from upstairs while she slept in the den; the meetings in the narrow upstairs hallway, when he’d snap, “Don’t touch me.”

For many months, Larry resisted his lawyer’s proposals for a way out. (One suggestion was that Larry persuade Annie to let him take out a loan that approximated his equity in the house.) Finally, “on the verge of going crazy,” he asked Annie to sign the paper that let him get the loan, and he moved.

Now their divorce is final. They have joint custody, and the children are attending their old school. Says Annie, who still looks drained and drawn eleven months after Larry moved out, “I’m living in the house, but it’s still partially his house; it’s still for sale. People celebrate divorces. I didn’t celebrate. What we went through was a horrible thing that will haunt me for the next twenty years.”

“If you have a chance to settle early, do it,” Larry says. “The final settlement was virtually identical to what we would have had the day she handed me the lawyer’s letter. Neither of us gained a thing—except thousands of dollars [paid out] in lawyers’ fees and three years of misery.

“My lawyer told me, ‘I wouldn’t recommend that a dog live like this. I only recommend it to my clients.’ “

Why did Larry’s and Annie’s lawyers advise them to endure the nearly unendurable? To put in motion the force-your-opponent-to-settle strategy, of course. But there are several other reasons for the increasing use of this maneuver. For one thing, while lawyers agree that a partner cannot lose his financial stake in a house by moving out, the recent decision in Fleming v. Fleming (New York Appellate Division, October 1989) indicates that a divorcing spouse who leaves home and sets up a separate residence forfeits his right to live in the marital residence. Says Florescue, “I used to advise my clients to move out for a cooling-off period to see if we could settle. Now it’s harder for me to do that.”

And, he points out, the IRS code may penalize the one who leaves. When the house is sold—sometimes years after the divorce—the partner who left may lose his right to claim the house as his primary residence. He will thus be liable for huge capital-gains taxes, having forfeited the right to roll over the proceeds into the purchase of a next house.

Some couples who must live together while splitting apart manage to stay civilized human beings. Even so, they find their circumstances a strain: “I made this choice,” says 38-year-old advertising executive Fern Bronstein*, “and now, after fourteen months, I realize that I’m in the most bizarre situation.”

She and her husband, 40-year-old Rick*, are not fighting over the settlement. They simply cannot afford to move apart, they say, until their $300,000 New Jersey house is sold, though Fern makes $65,000 a year and Rick commands the same salary as a sales representative for a computer company. Neither has savings.

Despite a few screaming matches that sent Fern to stay with friends for a night, their live-in divorce has been amicable—so much so that friends still invite them out as a couple. “He’s a good person, and I’m sure someone else will make him happy,” Fern says. “It’s better to leave now and have a shot at having children. When I asked for the divorce, he said, ’ Yes, I understand why.’ “

They feel tenderness toward each other; they have no wish to cause pain. When a date parks outside the house and honks the horn for Fern, it upsets her to see how vulnerable Rick is, how he silently turns and walks into another room.

They make small talk; they have bagels together on Saturday mornings; they share a car. While they are watching TV, one of them might say, “By the way, have you gotten a moment to look at the divorce papers?” They make jokes like “Don’t break that dish—it’s not yours, it’s mine.” Still, “It’s a tiny house and it seems to get smaller every day,” Fern says. She longs to get away from Rick—whose emotional dependence on her makes her feel guilty—and get on with her life.

This is the best of all possible live-in divorces. More typical is the mean version. But there is one practical solution: If living together becomes too uncomfortable, the partner staying behind can pay his mate to move out. Deborah Sterne* is doing that. A 42-year-old costume designer making $60,000 a year, she’s spent eighteen months living with the man she’s divorcing, 44-year-old Mark*, an actor.

He came up with the standard hassling techniques: bursting into her room constantly to dress and shower, pursuing her around the apartment, even shoving his way into her room against her attempts to shut the door. Sharing responsibility for their five-year-old son and eight-year-old daughter, they communicated mostly by notations in the Metropolitan Museum datebook by the kitchen telephone.

Their lawyers advised them to stay, but Deborah eventually caved in. She has agreed to borrow heavily to pay Mark his share of the equity in their $600,000 Village co-op. Will the high interest payments be worth it? She tosses her mane of ringlets and beams a meltdown smile: “Yeah!”

Hell Is the Other Person: “She has this hatred of me—my presence, the air I breathe,” says one husband. His wife agrees: “I couldn’t stand the sound of him brushing his teeth!”

Though staying together to force a more favorable division of assets or a better custody arrangement seems to make tactical sense, it actually slows down the settlement, says 37-year-old Maryanne O’Doherty*, who has now lived for almost two years with her estranged husband and two children in their $600,000 Riverdale house. Husband and wife become more polarized when they live together, she believes, and negotiations actually take longer. “The scab is constantly being ripped open,” she asserts fiercely. “You’re living together and hating each other, and you can’t get any distance that might allow you to negotiate.”

Hating each other and sleeping in the same bed is a perversion some people are driven to when they’re going through a live-in divorce. In such a case, pure human cussedness takes the stay-in-the-same-house ploy to an outrageous extreme.

Roger Masters*, a 47-year-old management consultant who makes $150,000 a year, refused to leave his $1.5-million, four-bedroom Park Avenue co-op, or even his bed, despite the furious protests of his wife of fourteen years, Laurie*, who had asked for the divorce. For more than a month after hiring lawyers, Roger and Laurie shared their bed every night. They rarely talked and never touched. Roger made jokes, Laurie recalls bitterly, like “What’s wrong with this picture?”

“I couldn’t stand the sound of him brushing his teeth!” Laurie says agitatedly in a telephone interview. She is speaking from Chicago, where she recently fled with their three children. “It’s an intrusion of your everything, physical and emotional! I’m lying in bed trying to sleep,” she says, her voice breaking. “How much more vulnerable can you be?”

But why didn’t she leave the house as soon as she’d filed for divorce? Laurie, a former dancer, says she had no independent income. She didn’t leave the bed right away because, she says, “I believed in my heart of hearts that if I just went along“—her voice rises in disbelief, irony, and shame—”everything would go smoothly.” She was afraid to provoke Roger, she says, afraid he’d put up obstacles to the divorce. She finally moved to a room down the hall.

“She had this hatred of me,” explains Roger, a donnish-looking man sporting a bow tie. “My presence, my life, the air that I breathed.” He rests one high-gloss shoe on the chair opposite the conference table in his expensively furnished midtown office. “What’s going to bring this thing to a head?” he says, gesturing with open palms. “Discomfort.”

As for his own discomfort in bed, Roger says it was worse before Laurie asked for the divorce, when there was no sex or affection in that bed and he was anxiously wondering why. “Listen,” he says, shrugging, “I’ve slept with people I’ve hated before—in school, in the Army, in camp.”

Roger shakes his head over the way Laurie would lift his “filthy, sweaty clothes out of the washing machine and toss them back into the hamper.” When he began staying elsewhere almost every night, returning in the morning just in time to change his clothes and see the children, Laurie moved his things out of the master bedroom—dumped them in a pile, he says—and put a lock on the bedroom door: “an industrial-strength Segal lock,” he says with amusement.

But she had no right to lock him out of any part of the house unless she was in danger—in which case she’d have grounds to force him out. A call from Roger’s lawyer to Laurie’s scared her into taking the lock off and moving back to the den. “I felt wonderful,” Roger says. “I turned it into a defeat for her.”

Walking the dog every morning, Roger lectured himself to stick to his strategy. Most important, he emphasizes, was his determination to keep his kids from feeling abandoned, the way the children of his previous marriage had felt. “I’d had that pain before,” he says with narrowed eyes and set jaw.

After nine months, negotiations grew fevered: Roger claimed he couldn’t afford their children’s private-school tuition without taking out a loan on their apartment, and Laurie refused him permission to do so; she believed this was one more trick to force her to give him the settlement he wanted. One day, having borrowed money from friends, Laurie packed a duffel bag for each child, took the dog, and flew to Chicago, where she quickly found a new school, an apartment, and a job as an office manager. She has no money and no furniture, but, she says, “I have my life back.”

Roger came home to an empty apartment and waited for their return … and waited. Now he is suing for divorce in New York to make sure the case isn’t tried under the divorce laws of another state. And Laurie is taking him to court because she says he’s not paying enough child support.

Whatever the legal or financial reasons that keep divorcing people in the same house, therapists and lawyers believe there is always an emotional subtext—a “power struggle,” explains therapist Olga Silverstein, senior member of the Ackerman Institute for Family Therapy, “which is acted out in the resolving of issues like ‘Whose bed is this? Whose house? Whose kids?’ “

Couples therapist Sonya Rhodes agrees. “Who’s going to leave and who’s going to stay takes on huge meaning in the aftermath of a failed relationship,” she says. Every part of the divorce negotiation becomes “another example of how ’you don’t want to accommodate.’

Psychotherapist Ellen Weber has seen many people use this staying-together as a time of transition, to avoid going “cold turkey.” Whatever they may say, Rhodes agrees, these people prefer to “stay a married person in crisis rather than become a single person, alone.”

Further complicating the emotional ground, observes divorce mediator and matrimonial lawyer Lenard Marlow, is that one partner has usually been emotionally girding himself to ask for the divorce, while the other, caught by surprise, is emotionally about eighteen months behind. The one playing catch-up tends to dig in and be unsusceptible to “reason.”

But the children’s situation is the real heartbreaker, says lawyer Betty Levinson, and she blames therapists as much as lawyers for this problem. “Therapists,” she says, “should say to fathers, ‘You are forcing your children to live in a war zone.’ ” Rhodes agrees that children find the tension and hostility between their parents devastating. “Even if there’s not gunfire,” she says, “there is some kind of guerrilla warfare,” and at the least the children experience “the delayed and postponed reality that the marriage is over.”

No matter what the experts believe, some couples say they are keeping themselves in limbo for the sake of their children.

That, at least, is the explanation Diane* and Kevin Lowe* give for the fact that they slept in the same bed for eighteen months after hiring lawyers. Or rather, it’s the more palatable of the two reasons they give. “Leave my bed? Forget it!” Diane snaps, and Kevin confirms that he refused to move—even down the hall—without a signed agreement. They schooled themselves to sleep so that they never touched.

More important than defending turf, though, they say, was maintaining an appearance of normality for their ten- and seven-year-old sons, who, a therapist had advised, shouldn’t be told about the divorce until shortly before Daddy’s departure.

Trying to convey what it was like, Diane, a 40-year-old in a cashmere jacket, leans across her desk. She may be a brusque public-relations executive commanding a $75,000-a-year salary, but from time to time she crumples into quiet tears and dabs neatly behind her round tortoiseshell glasses with a tissue. Then, briskly, she continues.

She had no difficulty falling asleep, even with Kevin beside her, she says, because she used sleep as an escape. To cope at other times, she made believe that Kevin, 42, wasn’t there, even when they sat opposite each other at their nightly dinner with the children, pretending that all was normal.

Stressful?” She chortles at the question through new tears. “I cried for two years. I had eating disorders. I had stomach pain.”

Even so, two years after Kevin moved out, both of them still believe they did the right thing for their children. “We negotiated down to a gnat’s ass,” Kevin says. Their 60-page agreement specifies the disposition of their $450,000 Westchester house, their assets, Kevin’s child-support payments, and the details of visitation for the next eleven years.

Kevin, a $150,000-a-year advertising executive, stayed, he insists, because “I desperately wanted a relationship with my kids.” One day midway through the process, he says, he felt the pain of leaving them so keenly that he pulled over to the side of the road and “cried like a baby.”

Both spouses blame their lawyers for the length of their ordeal. But, Florescue counters, “If people don’t trust each other and you have to write everything down, it can take an enormous amount of time.”

Kevin Lowe and Roger Masters stayed primarily, both said, for their children. But other men confessed that it was their house they had difficulty separating from. Jeff Miller,* 39, was having an affair with a woman “out of a Playboy centerfold,” but his $500,000 Long Island “dream house” is what he shows a misty-eyed affection for. Liz,* 37, his wife of fourteen years, who made $40,000 a year as a magazine editor (he earned $100,000), resisted settlement, he says, so he used his presence to make life “less cozy” for her. He wouldn’t settle because, he says, “her demands exceeded my litigation risks.”

Enemy in the House: “When you fight over a piece of ham and cheese,” a wife says, “you’re in trouble.”

A high-energy New York lawyer in an L.A. Law suit and haircut, Jeff describes his tactical maneuvers: “unexpected” appearances to “keep her on edge,” firing the gardener, planting a letter asking the bank to foreclose on the house. But his coolness drops away as he explains that coming home was not merely a strategic move: He also needed to be near his things. His “Architectural Digest house” was “a surrogate child; it was comfort, power, a symbol of achievement.” But now, looking back, he feels “we created a ‘look, don’t touch’ kind of house: It was a mausoleum, not a home.”

Jeff’s attachment to his house is a common feeling, say the experts. “A sad commentary on human nature,” Felder says. “What’s a house? Sticks, stones.”

“A house,” Silverstein says, “is a symbol of all the things that mean ‘home.’ ” Since separation issues figure powerfully in a divorce, those who had difficulty leaving home when they became adults, she predicts, will find that conflict exacerbated when they have to “leave home” again.

“The house symbolizes nurturing,” Rhodes confirms. “The idea that men can’t wait to get a bachelor pad with a water bed is a fantasy.”

Telling their stories, the women let their anguish show. But many of the men adopted a steely rationality that repelled rather than invited compassion. Still, it was clear that for some, this was their defense against rejection, loneliness, guilt, or fear; they seemed at pains to show that no matter how harrowing their ordeal, they had emerged unscathed. What was most touching was their fear of losing their children. They argued that no matter what explanation a father might give, the children would inevitably feel abandoned if he left—and one father spoke from experience.

Most of these men and women were not abnormally spiteful people, and they did not necessarily start divorce proceedings hating each other. Many believe that they became enemies only because of their enforced togetherness. Both the men and the women seemed trapped—by lack of money, by the law, by their own or their spouse’s rage. Over and over I asked the lawyers, “Was there no way out for them? Maybe a law regularizing the award of temporary exclusive occupancy?” But the question ricocheted: What law could provide affordable housing to the excluded partner? Sometimes there are practical or legal solutions if the pair can agree with each other or with their lawyers. But if they could agree, would they be where they are?

Bart Levy* is just where he was three years ago— geographically, at least. His experience demonstrates the stages of the under-one-roof divorce.

Married young, deciding to divorce after 22 years—not because they’d come to despise each other but because they had never been deeply in love and it was time to change their lives—Bart and Simone* were divorced a year ago.

During the two years it took to reach a settlement, Bart, 47, whose computer business was losing money, and Simone, 44, a $55,000-a-year accountant, felt they couldn’t afford separate residences. Besides, Bart loved his children and considered fighting for sole custody. “Where is it written that I had to move out just because I’m the man?” he demands. “Bull—- !” So they found a way of coexisting. Whoever got home first at night took the master bedroom, feigning sleep when the other walked through to get clothes.

Now that the divorce is final, they still can’t afford to move apart; their house, for which they’re asking $450,000, has been on the market for three years. Bart, a long, weedy fellow, is a tough-talking New Yorker with a poetic bent. Technically, he and Simone still live “together,” though they now spend, he quips, “between 3 and 33 minutes a week” in the house at the same time. Now each sleeps at a friend’s house several nights a week while the other remains home with their son and daughter, twelve and fifteen. “We are satellites to their earth,” Bart says.

He still does the laundry for the family. In the beginning, when he folded his wife’s panties, he’d feel loss because “I would never touch them again when she was wearing them.” Now he can’t tell which are hers and which are his daughter’s. “I feel frozen in time,” he says, “and the kids live a fairy-tale existence—they’re controlling two parents’ lives, and yet they have no control.”

Bart cannot wait to sell the house he once felt he could never bear to leave. It symbolized his marriage, and divorce had seemed an impossibility: “I believed you got married and made babies and played pinochle through eternity,” he says wistfully. Now when he walks through the house, he says, “it’s like when you go to a historic house—the rooms are hung with invisible velvet ropes: THIS PART OF THE HOUSE NOT FOR USE.”

*Names marked with an asterisk, and some details, have been changed.

Live-In Divorce