What's a woman to do?

Rob Walker
Town & Country Monthly, Page 115, 1998 Hearst Corporation. All rights reserved.
Further reproduction prohibited.

What is "a woman's work" worth? Not in a philosophical sense and not in the context of executive salaries for both sexes--but but in terms of how the role of a traditional housewife is valued in the eyes of the law? In high-income marriages the question is hardly trivial. Nothing has made that more clear than the highly publicized split-up of Connecticut's Gary C. and Lorna J. Wendt. A couple of small-town sweethearts, they rose from a humble background to considerable wealth during their thirty-plus-year marriage, with Gary ascending to the upper echelons of General Electric. While he climbed the corporate ladder, she played the corporate wife (mother, hostess, keeper of the home). Along the way he started earning big money, and the couple's net worth swelled--to about $100 million, by some estimates. How much of that fortune, then, should Lorna receive? Half, as she very publicly demanded, or the significantly smaller percentage her husband offered her?

The Wendt case has captured the attention of top matrimonial attorneys because, in high-income cases, the answer to that question is rarely uttered in public, let alone in a court of law. As a rule in such megadivorces, a settlement is reached before an actual trial or, in any case, a verdict. So divorce lawyers nationwide believe it to be the most significant ruling in the nearly thirty-year history of no-fault divorce on what a nonprofessional spouse can claim from a high-asset marriage.

Marital assets are commonly split up according to differences in state laws--and, lawyers say, according to differences in courts' attitudes toward big-money cases. If the Wendt case were tried in one of the rune so-called community-property states, for example, it would begin with the presumption that each side would receive half. Gary Wendt's assertion that Lorna deserves less because he was the breadwinner would be a tough sell m, say, Texas or California, where community-property rules govern. Some suggest his argument might have worked in the '50s, but, says Dallas matrimonial attorney Mike McCurley, "These are the '90s! Our courts' view on that would be: `Get a gnp'" Similarly, Lorna Wendt would not have to prove that her contribution to the marriage was material to the creation of the couple's wealth. As Beverly Hills divorce lawyer Daniel J. Jaffe puts it, "If a different Mrs. Wendt--one who didn't even know what business her husband was in were here in California, that Mrs. Wendt would get 50 percent, too."

But the remaining states including Connecticut--operate under a different legal theory, called equitable distribution. Here, it's up to the two sides to convince the court of the fairest way to slice the pie, which can mean a traditional homemaker has to prove just what she contributed. To borrow a term from Miami lawyer Melvyn B. Frumkes, she has to find a way to measure her "martial sweat."

This, according to Lorna Wendt and her attorney Sally Oldham, is where things get slippery--and where, they contend, corporate wives get shortchanged. Lawyers in a range of equitable-distribution states say that if the asset pie is less than $10 million, the court tends to split things up fifty-fifty (depending on such factors as the length of a marriage). But when assets creep past $10 million, judges' attitudes begin to change: the breadwinner tends to get a larger percentage once the other spouse has been awarded "enough".

"What we have is sort of a glass ceiling" says Oldham, who claims she's heard judges literally say "enough is enough" in pretrial conferences. At a high-asset level, explains Chicago divorce lawyer Donald C. Schiller, "the question the courts wrestle with is: at what point is the homemaker's contribution adequately acknowledged? Does it justify a balance-sheet 50 percent division?"

Stanford University labor economist Myra Strober says attempts have been made to gauge what it would cost to replace all the functions fulfilled by the housewife, from cooking to childcare. Several factors undercut this approach, most notably the fact that much of her work has no strict correlative in the marketplace. An attempt to gauge how much a woman could earn in the workplace were she not a homemaker was also problematic: "You can get a mom with an MBA raising one kid who seems to be `worth' more than an uneducated mom raising six kids," says Strober. "Now, who's doing more work?"

In the Wendt case--for which Strober was called as one of Lorna's expert witnesses a simple theory was floated. "I considered our marriage an equal partnership" Lorna Wendt told Town & Country. "For more than thirty years, we divided the work that goes into a marriage, and my ex-husband treated me as a full partner. It wasn't until the divorce that he suggested I was anything less than that." In that sense, she contends, the marriage was a sort of joint investment: she put in time raising the kids, hosting the parties, offering career advice, doing everything a corporate wife traditionally does, while he earned the paycheck. Now that the proceeds of that investment have come m, the split should be right down the middle, according to Lorna. So Gary's reported offer of $10 million came up far short of the percentage Lorna felt she deserved. (For his part, Gary Wendt has said publicly: "[Lorna] was not responsible for my success. This is about who created and preserved the assets.")

Leading matrimonial attorneys say women in positions similar to Lorna's may share her sentiment but almost always settle for less to avoid the grinding publicity of a trial. New York lawyer Norman M. Sheresky, for example, recently represented a woman whose argument resembled Lorna Wendt's. "Did I get half the wealth for her? The answer is no" he recalls. "There was no consideration that she would get it. Wendt is really pushing the envelope."

Some say she has pushed things too far. "It's ridiculous" argues Chicago divorce lawyer Arthur M. Berman."How much money does one person need? If I had a client like that, I'd be on the floor begging her to settle" Oldham has heard that viewpoint expressed many times before, most recently by Gary Wendt's lawyers. She says: "Our response is, Why does he need $90 million?"

Lorna Wendt's willingness to wage her fight exemplifies a shift divorce lawyers have been observing for years. Detroit's John F. Schaefer says he's handled about ten cases involving assets of more than $100 million, and at the moment he's representing a wife in the $40-million-plus range. Will his client get her half?. "Maybe" he says. "Twenty-five years ago, I just would have laughed."

But not anymore.