March 03, 1986 12:00 PM

“Divorces are not won,” maintains Chicago lawyer Marshall Auerbach. “They are lost by the side that makes the most mistakes.” Auerbach, 53, ought to know. Co-author of Illinois’ comprehensive divorce statute, designed to ensure a fairer division of marital property, he has lost only three of the 350 divorce cases he has handled since 1972, and in 1980 negotiated one of the highest out-of-court settlements in the state’s history—$7.8 million for the wife of a real estate developer. Never in need of his own services, Auerbach, the father of two, has been married to his first and only wife, Carole, for 25 years. Curiously, he attributes his own connubial success to the requirements imposed by his calling. “My job is so demanding that in the time we do have together we are more focused when we discuss things,” says Auerbach. “We are less emotional than most couples, and we don’t send up trial balloons.” He discussed the strategy and tactics of high-stakes divorce with correspondent Barbara Kleban Mills.

Apart from anyone who marries Johnny Carson, what kind of woman is most likely to strike gold in divorce court?

In many ways a divorce action is like a chess game. You have to plan several moves ahead, and the woman must have patience, willpower, a risk-taking mentality and even physical endurance. The women who win are stubborn. They are not gullible. They are positive thinkers and they are demanding. Many women who are married to very wealthy men, especially if they have been married to them for many years, are better able to grasp the meaning of complicated financial concepts. A big-bucks winner has financial radar.

What is financial radar?

A woman can feel the financial vibes when, say, her spouse siphons off assets through gambling or by buying furs or jewelry for another woman. Some might call her paranoid, but she is actually very alert when it comes to financial transactions, and she is willing to work at it. She reads income tax returns. She will go to the public library or call a financial analyst to educate herself about dealings in which her husband is involved, such as real estate, contracts, pensions, banking and stock options.

Do husbands often hide their assets?

I often uncover assets that have not been voluntarily disclosed. Since the introduction of no-fault divorce laws in many states, the emphasis is no longer on someone peeping through a transom to discover some untoward personal conduct. The matrimonial lawyer must focus on the financial aspects of a case. I call on experts such as forensic accountants, who analyze business interests and trace assets, and actuaries, who evaluate retirement plans.

Suppose a wife has been quietly hoarding assets like cash or jewelry?

When representing a man, I have often gone through canceled checks and charge account records to find that the wife has stockpiled a hoard of linens, lingerie, perfumes, shoes and purses. When this is established, a judge will usually treat it as part of the wife’s property award so that she receives less of the other marital assets. The big winner in property distributions is usually not a big spender.

What kinds of property can complicate a high-stakes divorce?

Last year I had a case that involved seven corporations, 16 partnerships, 35 pieces of real estate, several retirement plans, 15 bank accounts and other assets. My client, the wife, was awarded the couple’s former residence, three condos in Florida, an Excalibur automobile, two Cadillacs and a lump-sum payment of $1.7 million. In other cases couples have fought over thoroughbred race horses, an island retreat and art. One wife wanted and received the use of her husband’s Learjet, with pilot, for 15,000 miles a year. Another wife wanted a cemetery plot. Her husband agreed—on the condition that she make immediate use of it.

What would you tell a woman contemplating a big-money divorce?

She should see a matrimonial lawyer well in advance with a detailed checklist of assets and liabilities, and she ought to ask what she should be doing to help her case. A woman in this situation should never say, “Just get it over with.” She must recognize that being patient is going to be worth the trouble in the long run. She should keep files, records and a financial diary of facts that would be needed in the event of a divorce—like the details of a foolish business venture, which she may have discouraged. She should not cave in to an ill-advised settlement because she is crumbling emotionally. She should not get discouraged by temporary setbacks, and she must withstand the barbs and maneuvering of her husband.

What sort of maneuvering?

In order to destroy the confidence a wife has in her lawyer, the husband will often tell her that the money is draining away because of the length of the legal proceedings. If she isn’t warned about that ploy, she may be taken in by it and find herself negotiating directly with her husband, who is frequently the dominant party. In many ways successful divorce negotiations involve all the discipline, planning and strategy that go with a corporate takeover.

Aren’t lawyers the only real winners in many divorces?

Contrary to popular belief, the lawyers’ fees are in proportion to the assets involved in the particular case. And these fees are generally related to the actual time that is devoted to the case.

If a woman has not contributed financially to a marriage, what factors may be considered in her favor?

One of the most important is for a woman to have been a good homemaker. A wife who has taken the trouble to master French cooking or prepare unusual dishes for her husband qualifies for special consideration. Chores like running errands in connection with her husband’s business or entertaining in order to enhance his career should all be brought out as part of the homemaker testimony. This isn’t done nearly enough. If the children are well-adjusted and prospering in school, the wife’s lawyer should bring that out. If the opposite is true, then that should be pointed out by the husband.

Does physical abuse have any bearing on a property settlement?

The courts in many states cannot legally consider fault when it comes to determining property rights. I once represented a woman who was in jail for shooting her husband in the abdomen. He survived, and she received a 50 percent division of the property.

How should a woman who is seeking a big divorce award present herself in court?

Big winners are generally attractive and at pains to keep themselves that way. However, some of their beauty is lost in my eyes when they become greedy. A woman should dress in a conservative but stylish manner, and it is very important that she wear her wedding ring in court to show her respect for the institution of marriage.

How else should she behave?

I tell any woman I represent that she is onstage every minute she is in that courthouse. A case could be lost because of an unfortunate comment made in an unguarded moment—even during a recess. I often prepare a client in an empty courtroom, having her run through testimony to make sure her voice is audible and to give her a feel of the courtroom. Once I drilled a client for a couple of hours in an empty courtroom. Suddenly a door opened and the opposing attorney said, “Good job, Marshall, don’t forget to tell her to take a curtain call.”

What techniques do you use when you represent a husband in a divorce?

Fifty percent of my clients are men. I use a concept I call the negative-homemaker credit. I had a case recently where the former housekeeper testified that the wife never did housework herself, lay about on the sofa watching soap operas, left the house in disarray and was never seen washing a dish or dusting or sewing or organizing the laundry. Whatever negatives exist should be brought out. It’s extremely helpful in getting a favorable result for a husband.

Do women who win hefty settlements tend to remarry quickly?

No. They often become overly protective of their newly acquired wealth and develop a feeling that men are after their money. That can be extremely unfortunate. I believe in the need for post-divorce counseling of some sort so that people don’t make the same mistakes in a second marriage that they did in their first.

What advice would you offer a man or woman about to marry a rich partner?

Both bride and groom should be convinced that the wealthier partner doesn’t feel he or she is being married for money. Both should be convinced they are truly in love with each other. A prenuptial agreement is helpful in some cases.

Under what circumstances would you recommend one?

Prenuptial agreements are usually negotiated when one party is much wealthier than the other or there are children by a prior marriage to be protected. I recommend them if either party is capable of an income explosion such as professional athletes and entertainers. Also, for individuals who have gone through a messy divorce, it may keep that from happening again.

Would you have considered a prenuptial agreement before your own marriage?

Frankly I would be uncomfortable living in a marriage under a contract. I feel it would have chilled the relationship to some degree. And I honestly believe that had we had one, we would have torn it up long ago.

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