We see it all of the time. Your spouse cheated and more than that, spent a lot of money on that #%!@@@ (add your own derogatory word here.) Your say that your spouse is a terrible parent, a drunk, an addict, beats you and the kids, etc. You say that your spouse is alienating you from your kids. Your spouse cheats on his taxes and you can prove it. Some or all of these things, if true, may have some relevance in a court to properly address issues in your divorce case.
On the other hand, should you be blabbing these things all about town? Sure it may make you feel good if people think you are good and your spouse is bad, that it is his/her fault, that you are perceived as the victim. Notwithstanding, should you do it? Now this does not mean that you can’t speak to family members, your therapist of closest confidantes. But does it make sense to hurt your spouse’s and the parent of your children’s reputation in the community. What if she/he has a business? Does it make sense to do something that may impact the business? What if he has a professional license? Does it make sense to file a dubious report trying to get your spouse to lose their license – the very license that they will rely upon to pay the support you are seeking? Worse yet, does it make sense to have your spouse arrested or file abuse claims that have to be investigated by authorities, that are not grounded in fact and/or are meritorious?
If you read today’s New York Daily News (or Post for that matter), the answer to these questions was a resounding NO in the case of Schacter v. Schacter. In this case, the wife got a lesser share of the value of the husband’s interest in his law firm and less maintenance (aka alimony), because of her conduct that impacted the husband’s reputation and thus, as the court found, both the value of his interest in the law firm and his income.
In this case, much of the above hypothetical conduct was alleged to have occured. Moreover, the wife went to the press with things which wound up in the paper and other web sites. New York Judge Laura Drager’s rationale was interesting:
… But for her actions, notwithstanding the recession, his partnership value would not have declined. In light of that position, the court concludes that the appropriate value of the partnership is as of the date of commencement of the action. The effect, if any, of the Wife’s actions during the pendency of this litigation is more appropriately addressed in determining what percentage of the value of this asset should be distributed to each party …
Thus, the judge determined that because of her actions, the was going to receive a smaller share of the of the law practice. The judge went on, including addressing the wife’s claim that she did not intend to harm her husband’s career:
From the evidence presented, the court concludes that the Wife contributed to the decline in value of the Husband’s law practice. The court has considered the multitude of newspaper articles and website postings arising from this divorce litigation. The article and a significant number of the postings presented the Husband in a negative light. Although the Wife was not necessarily the source of each of these postings, she was the initial source of the articles, and, throughout these proceedings, regularly posted negative information about the Husband to various web sites. The Wife claims she never intended to harm the Husband’s career and that she, herself, never mentioned his law firm by name. The court finds her claim completely lacking in credibility. The Wife is intelligent and very savvy with respect to public relations. She would surely have understood that the reason why her stories had legs was precisely because her Husband was a partner at a major law firm. Even if by some stretch of the imagination she thought otherwise, the very first article printed in the Daily News, in which the Husband’s law firm was mentioned by name, should have disabused her of the belief that the Husband’s career might not be affected.
In the initial Daily News article, she accused the Husband of assaulting her, immediately after the charges had been dismissed on the merits by the District Attorney’s office. Later, she was the source of an article in the New York Post complaining that although the Husband had not paid $12,000 for new hearing aids for the daughter, he had purchased an engagement ring for his fiancee costing $215,000. This article appeared in the papers in late October 2011 In fact, the daughter received the hearing aids in July 2011. By the time the article appeared, the only point in issue was who bore the responsibility for the cost of the hearing aids in light of certain events that were in dispute. That issue was pending before the court. The Post article was picked up and circulated by numerous other web sites around the world. Some of those articles included the name of the Husband’s law firm. The court finds that the purpose of the original article was to embarrass the Husband and negatively affect his reputation. The Wife admitted in testimony that she spoke to reporters so often she could not recall how many conversations she had with them.
The Husband, in articles that mention his law firm by name, became an involuntary contestant for the negative award of Lawyer of the Month conducted by the Above the Law web site because of his alleged failure to pay for the daughter’s hearing aids. Although he “lost” the contest, several articles on that site and other web sites contained negative references to him resulting from thiscontest. The Husband was then included in Above the Law’s contest for the negative award of Lawyer of the Year. (Exhibit references in original omitted)
If that wasn’t enough, there is more:
The Wife argues that the drop in the Husband’s business was caused by his own failure to work as hard as he had in the past. She claims that in her comments to the media, “(s)he never disparaged (the Husband’s) legal abilities”, and therefore cannot be blamed for the loss in his income. However, as the Wife, herself a lawyer, would know, an attorney’s reputation is based not only on legal ability but on his reputation for integrity. Accusing a person in the media of an act of domestic violence (although the action was dismissed) and negatively raising an issue regarding payment of the daughter’s hearing aids when the issue was sub judice, could only have been intended to harm the Husband’s reputation. The Wife was well within her rights to publicly raise her concerns about domestic violence. However, the Wife’s incessant postings and discussions about the Husband went beyond any reasonable discussion of this very serious issue.
Perhaps most disturbing, the Wife may have filed grievances against the Husband with the New York State Supreme Court Appellate Division First Department Departmental Disciplinary Committee, potentially directly affecting his license to practice law. In the midst of the trial, the Wife acknowledged that she “tried” to file a grievance against the Husband. When pressed on this issue,the Wife “couldn’t recall” if she had filed a grievance against the Husband.
At trial the husband presented lay and expert testimony about how this conduct impacted his business.
As a result of the above and more, the Judge concluded:
The Wife’s conduct during this litigation has negatively affected his earning capabilities. It is appropriate for the court to consider the effect of her conduct in distributing the assets of the marriage. It has been held that actions taken by a spouse that damage the other spouse’s career can be considered in setting a later valuation date of that spouse’s enhanced earning capacity. For the same reasons, such behavior may also be considered under the statutory factors used to determine the distribution of marital assets. (legal citations omitted)
As a result of the conduct as well as the loss in value and income caused by the ecomony, the wife only received a 17% of the value of the husband’s interest in the law practice. In addition, because the conduct decreased the husband’s earnings, the alimony was less too. As to the rationale for this, the court noted:
In addition to the effects of the economy, the Husband had to endure the Wife’s attacks on his reputation in the media and on the internet. The impact of these stories on the Husband’s ability to generate income has already been addressed. In essence, the Wife chose to bite the hand that fed her. Although the court recognizes that the Wife feels she was badly treated by the Husband, her repeated attacks against him have played a part in diminishing his income. It may be that the Husband will be able to restore his career, but the Wife presented insufficient evidence to support a finding that he has already done so.
The take away from this is though you may have a hundred good (in your mind) reasons to do so and may feel totally justified in doing so, attempting to kill the goose that laid the golden egg – or as Judge Drager said, choosing to bite that hand that feeds you, should be done with the knowledge that it could impact your overall entitlements.
Eric Solotoff is the editor of the New Jersey Family Legal Blog and the Co-Chair of the Family Law Practice Group of Fox Rothschild LLP. Certified by the Supreme Court of New Jersey as a Matrimonial Lawyer and a Fellow of the American Academy of Matrimonial Attorneys, Eric is resident in Fox Rothschild’s Roseland and Morristown, New Jersey offices though he practices throughout New Jersey. You can reach Eric at (973)994-7501, or firstname.lastname@example.org.