Divorce expert Dror Bikel, a noted New York City-based matrimonial trial lawyer, addressed the 2018 Mensa Annual Gathering on the issues in his upcoming book The 1% Divorce, When Titans Clash. Greeted by an enthralled group of America's brightest, Dror Bikel looks at mega dollar and celebrity divorces to distill wise strategies and practices for anyone in the midst of or considering a marital split.
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Announcer: It is a very great pleasure to introduce Dror Bikel. He founded and leads a New York matrimonial law firm focused on high conflict, high net worth, divorces. Labeled in the media as New York’s scariest divorce lawyer - is that an oxymoron? - he shepherds the well-heeled set through their martial splits. Sports figures, billionaires, entertainment notables, Wall Street financiers, politicians or their spouses, are his clientele.
In 30 years as New York City’s go-to divorce prenup lawyer, he has dispelled some valuable lessons for anyone going through or considering divorce. I didn’t know it was a “how-to.” His upcoming book, “The 1% Divorce - When Titans Clash,” is set for publication in September.
Dror Bikel: Good morning. People ask me all the time, “How is it that people who meet, fall in love, get married, have children, perhaps have some financial success, how is it that those people, why is it that those people, engage in bitter, protracted, expensive, acrimonious divorce proceedings? How did they get from being in love to absolutely hating each other? How does that happen?
Well, some people say, “Is it the lying? Is that what it is?” Well, lying isn’t good. It’s not a good thing for a marriage. Is it the cheating? Well, that’s not good either. Is it the stealing? Is that what causes this? Stealing definitely contributes. But, I would say, the one quality, the one feeling, that results in an acrimonious, protracted divorce is anger. And, how is it, in a long-term marriage, do people get so angry at each other?
And, it’s a difficult question to answer. And, I think what happens, based on my observations, is that people over time lose the ability to communicate effectively. What happens is that they hurt each other intentionally or unintentionally. Somebody reacts, hurts their spouse. There’s another counter-reaction. And, then, people kind of get calcified and cornered in their positions. And, they’re ready to just go at it, to the point where they just can’t communicate with each other, and they often need psychologists or lawyers to communicate between them.
And, then, they end up in court. And, divorce court is kind of unique because, while there is a lot of case law and statute, on the other hand, there really isn’t in the sense that the judges sit as a court in equity, meaning, they can use their judgment based on wide parameters. And, they apply such kind of vague principles as “best interests of the child,” or “financial contribution.” So, what do those terms mean? Well, good question. It may depend on the judge, and it may depend on the time of day, because they’re very vague concepts. So, when you have angry people, and you have vagueness in the law, that results in long, protracted, acrimonious litigation.
Now, several years ago, I was involved in a case. I’m going to show you a little video clip that captures what I just said but in an extreme way. It has everything. And, it had everything. And, I will tell you the story from my perspective as the attorney for the wife, Sophie Meneut. Tony Tung, the gentleman that is about to be interviewed on the screen.
Announcer: Day after day, Tony Tung watched the prosecution portray him as a cold-blooded killer. It wasn’t a pretty picture, and according to Tony, it wasn’t a true one, either.
Interviewer: There’s a lot of bad things adding up here, where he was killed, you wiping your computer hours after the murder, you going to visit him.
Tony Tung: Yeah, but I didn’t kill him.
Interviewer: Did you have someone drive you over to Teaneck?
Tony Tung: No.
Announcer: For Sandra Milan, the prosecution’s theory that Tony murdered his wife’s lover out of jealousy made no sense.
Interviewer: Sometimes in crimes of passion, you don’t really think it through. You’re angry.
Sandra Milan: Well, a crime of passion, when you’re angry, that happens right then, doesn’t it? Does it really happen over a year later when things are working out?
Announcer: It turns out, that was the same argument Tony Tung’s attorney, Robert Kalisch, made to the jury. “Why,” he asked, “would Tony kill Rob a year after Rob had shown him the bed where he had sex with his wife?”
Robert Kalisch: If he didn’t kill him right there and then, he wasn’t going to kill him at all. Because, that was the time to do it, with his bare hands.
Announcer: According to Kalisch, investigators never seriously considered the possibility that someone else may have wanted Rob Cantor dead.
Robert Kalisch: Tony was the only suspect.
Announcer: “Another potential suspect,” Kalisch said, “was the stranger who had been spotted near the Cantor home shortly before the fire.” Charles Johnston was the neighbor who reported the man to police.
Charles Johnston: I saw an older gentleman, approximately 65 or 70, white male, with a red cap on, white hair.
Robert Kalisch: Was it someone from the neighborhood?
Charles Johnston: No.
Announcer: Bergen County detectives never followed up on that.
(end of the video)
Dror Bikel: Okay. What happened? I represented Tony’s wife, Sophie Meneut. Sophie came to me several years ago. She’s a lovely, engaging, very smart, and very beautiful accountant from France. And, she came to me, and she said, “I want to get a divorce. I’m in a new relationship with a man named Rob Cantor. My husband’s name is Tony Tung. Tony’s a good father. We have three girls, ages eight, six, and four, and Tony can see the girls whenever he wants. I don’t want any money from him. The girls will be with me. He’s a fine father. I just want to get a divorce.
So, we thought, “Okay, that’s a pretty easy case. There’s nothing unique about it.” We asked the usual questions of Sophie. “Are you safe at home? Are there any issues that you need to tell us about?” And, she said, “No. I just want to get out of this marriage.”
So, we sent Tony a letter, a standard lawyer letter, that says, “We represent your wife, Sophie. Sophie would like to resolve your divorce amicably without judicial intervention. Please call me or have your attorney call me.” A couple of months went by, and we didn’t hear anything from Tony. So, Sophie came to our office and said, “Look, he’s having a hard time with this divorce. Why don’t you serve him with divorce papers? We don’t have to go to court. Just serve him with the papers. I’ll pay for his lawyer. We’ll get them sent over with an attorney, and we’ll just move on.”
So, we hired a process server, and we filed what’s called a “summons,” which is a form that you file to start a divorce proceeding, filed it with the court, and we served Tony on a Friday. Two days later, Tony travels from Manhattan, being inside of Manhattan, to New Jersey, Bergen County, Teaneck, New Jersey, which is in northern New Jersey. He goes to the home of Sophie’s boyfriend, Rob Cantor, a guy in his 50’s who is separated from his wife at the time. They weren’t living together, although they had a good relationship, Rob and his wife. Rob had two children, adults. Tony took Rob, at the point of a gun, to the basement of his home, where Rob had first had relations with Sophie. He shot Rob in the back of the head and burnt Rob’s body and burnt the home.
That night, Sophie calls us in a panic and tells us that Rob had been murdered. And, Sophie also tells us that she believed that Tony committed the murder. And, of course, we had never heard anything bad about Tony. All we had heard was that Tony was a good father and a good guy.
That Monday, we go to court. And, again, we’re divorce lawyers. We’re not prosecutors. This is all done civilly, meaning civil court, not criminal court. We go to court, and we request what’s called an “Order of Protection.” An Order of Protection is a civil order. It’s not a criminal order. It’s a civil order requiring Tony to stay away from Sophie and her three children. And, if he violates the Order, he is subject to criminal penalties. But, the Order, itself, is a civil order. Kind of a unique proceeding in a family law case.
And, that morning, we appeared before a judge named Marva Burnett, a very experienced judge in New York Family Court, and we said, “We think that Tony Tung killed Rob Cantor.” And, Referee Burnett said, “Has there been an arrest?” We said, “No.” And, she looked at me, and she said, “How do you know that Mr. Tung did it?” And, I said, “I don’t. But, we need the Order.” She gave it to us.
Tony was served. Judge Burnett ordered us to come back to court one week later. And, when you first go to Family Court, you go alone, meaning, it was just Sophie and me. Tony wasn’t there. You go, what’s called “ex parte,” “on your own.” So, Tony did not have an opportunity to defend himself. And, as these things go, Judge Burnett ordered us to come back to court one week later with Tony. So, we had to serve him with the Order and, then, he would come to court to defend himself.
We served Tony with the Order of Protection immediately. And, immediately, we contacted the Bergen County Detective’s Police Department to find out what was going on, because if we didn’t have any evidence that Tony committed this, then there would be no Order of Protection, and we wouldn’t know what would happen.
So, we came to court about one week later with the investigative detectives, and we had a short hearing. And, they told Judge Burnett that Tony is a Person of Interest in the murder of Rob Cantor. He is the only Person of Interest. And, they looked at Tony. Tony was with his lawyers. Tony looked at me. He looked at them. And, he said, “I didn’t do this.” Judge Burnett granted an extension of the Order of Protection. It was a temporary order, and every month or two, for a year, we were back in court extending the Order with the detectives.
During that year, Sophie went to work with bodyguards. Her children were not allowed to have play dates or sleepovers after school. They were told to come home immediately. She was scared for her life, for the lives of her children. But, there was no arrest. Time went on. We learned for the first time that some troubling things had occurred during the marriage, that Tony was a hoarder, that he was addicted to pornography, that he did not contribute one penny economically to the marriage, that he had put spyware on Sophie’s computer and knew about her affair with Rob.
Now, of course, Rob was a very well-liked person in his community. He had a ton of friends. He met Sophie. They fell in love. They went to cultural activities and lectures and museums together before he was killed. We also learned that Sophie and Tony had gone to a couple’s therapist named, “Anne McDonnell,” who was in her seventies and that Tony had said some troubling things to Anne, such as, “Revenge is best served cold. And, Sophie’s relationship with Rob didn’t start right and, therefore, it’s not going to end right.”
But, of course, that’s not evidence of murder. That’s just weird. But, that doesn’t mean he committed murder. We met with Rob’s friends, who were convinced that Tony had committed the murder, but beyond that, had really no evidence.
And, a year went by. And, after a year without an arrest, Tony was feeling emboldened, and he wanted to have contact with the children. He wanted to see his children, his three girls. So, he made an application to lift the Order of Protection as it pertained to his children. And, Judge Burnett said, “Look, it’s been a year. Either there’s an arrest, or there’s not an arrest. I can’t keep this Order going forever. We’re going to have a trial on the Order of Protection.”
The Order of Protection was a temporary measure that lasted a year, a temporary Order. But, to have a permanent Order of Protection, and by “Permanent,” I mean, “three years.” I don’t mean “forever.” We need to have a trial, an evidentiary hearing. So, Sophie and I prepared for a trial.
I was going to call in Anne McDonnell and Rob’s friends if they would come in and testify because they had some favorable evidence. And, they said, “No. Actually, we will not, because we’re scared of Tony. He’s a scary guy, and we have children, and we’re not going to do it. We don’t know Sophie, and we’re not going to do it.”
And, of course, I could subpoena them and require them, but that’s not great if they’re not willing. Right? Because, I don’t know what they’re going to say if they’re not voluntarily coming to court.
But, Anne McDonnell, who’s a grandmother, said, “Sure. No problem. Of course, I’ll testify.” So, she was my one witness. So, I asked Anne, “Are you scared of Tony?” She said, “Come on. I’m in my seventies. I’m not scared of anybody. Of course, I’m going to come testify.”
So, the trial was scheduled for a Monday. Five days earlier, on that Wednesday, I get a call from the prosecuting attorneys in Bergen County, New Jersey, across the river. And, remember, that there was no evidence that Tony was in New Jersey, just like this video clip said, “There’s no evidence…” And, after September 11th, there are videos, and all the bridges and tunnels going in and out of New York to New Jersey, the Holland Bridge, the George Washington Bridge, the Holland Tunnel, the Lincoln Tunnel. There are videos all over the place. And, there was no video of Tony coming into New Jersey from Manhattan at the time of the murder.
So, Sophie and I go to the prosecutors, and Wayne Mello, the lead prosecutor, who was mentioned on this clip, asked me if I thought I would succeed in this trial continuing the Order of Protection, and I said to him, “Yes and no. Yes, for Sophie. No, for the children. Unless you have evidence to give me.” And, he said, “Well, we’re not going to do that, but thank you very much for the information. Good luck.”
Two days after I went to the prosecutor’s office and two days before the trial, Sophie’s in my office, and we’re preparing for trial, and we get a call from the detective, Cecelia Love, who said, “I need to see you right now. Is that okay?” She showed up in my office, and she said, “We just arrested Tony for the murder of Rob.” He sat in jail awaiting trial for a year, and he was convicted of First-Degree Murder.
Sophie then moved to Europe with her children. And, Tony’s in jail.
That’s a case where everything went wrong. You have addiction. Tony was addicted to pornography. You have dishonesty. Sophie was having an illicit affair. And, you have bullying and intimidation by Tony. But, mostly, what you have is uncontrolled, fierce, murderous anger. And, that’s the feeling that drives most of these high conflict, contested, protracted, expensive… And, by meaning “expensive,” I’m talking seven-figure expensive. And, I’m not saying my fee is… That’s standard operating procedure in New York -- seven figure divorce proceedings that last years. And, I’m not talking two or three years. I’m talking five or six years.
Audience Member: It sounds like he was completely, financially dependent on his wife. Wasn’t that an issue?
Dror Bikel: It was an issue, and those are the hardest cases to resolve, actually. I’m not just talking about Tony and Sophie, actually, but when it’s the wife who is the primary earner and the primary caretaker, and there’s a lot of people whose marriages dissolve because the husband is not contributing. The wife takes care of everything related to the children – the social activities, the medical appointments, the educational issues – the wife handles it all. Plus, she earns all the money.
Those are the most difficult cases because to ask the wife, “Mom,” to pay the husband, is asking her to swallow a very bitter pill. It’s usually the reason why they want to get divorced in the first place because the husbands don’t want to get divorced. They’re great with this arrangement. It worked for them.
It’s the wife who usually drives those divorces, understandably. But, the law would require them to actually pay the husband, usually spousal support, and the husband may get a large percentage of the marital estate, assets acquired during the marriage.
So, “Yes,” to answer your question, “Tony was dependent on Sophie.” And, that was an issue.
Audience Member: With the criminal charges pending, or possibly pending, how could Tony defend himself in a “civil” proceeding?
Dror Bikel: Great question. At that time, in New York, you actually needed to have a reason to get divorced. No longer. Now you can get divorced on irretrievable breakdown of the marriage. There’s no real burden of proof for that. But, at that time, in 2012, New York was one of the few states, and I’m talking about one, two, or three states that required parties to have grounds. And, grounds consisted of adultery, which is very hard to prove, cruelty, abandonment, were the main ones. Constructive abandonment, which means, you didn’t have relations with your spouse for a year, which is what everybody went on, even though, whatever. Judges kind of turned a blind eye to that. People just testified about constructive abandonment.
But, Tony, when it came to divorce time, we have a three-year Order of Protection. He’s arrested. He doesn’t contest the Order of Protection. That’s done. Sophie gets a three-year Order of Protection that’s renewable after three years. Now, we have to get her divorced.
Well, Tony doesn’t agree to get divorced. And, he’s not convicted of anything. He’s sitting in jail, but he hasn’t been convicted of anything. So, how do I get Sophie divorced? I mean, it seems absurd that she can’t get divorced. This is not like Saudi Arabia. She should be able to get divorced.
So, we get assigned to another judge, Judge Matt Cooper. Matt Cooper is a tough judge, and Matt Cooper said, “He doesn’t want to get divorced, this is what’s going to happen. He’s going to testify from jail. Sophie will testify about grounds. And, she’s going to get divorced.”
So, we had a hearing. Tony made us do this by not agreeing where Tony testified from jail and objected to the divorce. And, Sophie testified about incidences of cruelty. And she got divorced. And, he still has to pay child support, actually. The statutory minimum, regardless of incarceration, is $50 a month. And, he’s obligated to pay it. He is in default, but we’re not going to do anything about that.
Audience Member: Could Tony have gotten to New Jersey on public transportation?
Dror Bikel: Maybe. But, there are videos on all public transportations, well, in all the stations. I mean, in New York City, as an aside, the police rarely go to somebody to make an arrest. There are so many cameras around if somebody commits a crime, thievery in Midtown on 46th Street, the Diamond District, somebody goes in with a gun and steals some diamonds, there’s so many cameras that the police will just call the guy and say, “Come surrender. Don’t make us send a squad car out. We got you on tape.” So, maybe. I think what I’ve heard was that Tony was in the backseat of a car but went really low when they went through the tunnel or the bridge. Probably the bridge, the George Washington Bridge. He just stayed very low, and the cameras didn’t see him. That’s the theory.
Audience Member: In the interest of having his perspective, did you hear his interrogatories or depositions?
Dror Bikel: So, in Orders of Protection…interrogatories and depositions. Those are techniques to exchange information. So, in Orders of Protection, you’re actually not allowed to do that in New York.
Audience Member: What about actual divorce proceedings?
Dror Bikel: Oh, the divorce proceeding. Yeah. Sure. But, for what end? He was in jail for murder. He had no money. There was no reason for us to do it. He didn’t have the capacity to do it. He could have... you’re right. He could have sent us a request for information, and we would have had to comply. But, it didn’t happen. The main issue was getting her divorce and overcoming the statutory requirement of grounds.
Sometimes, people ask me on occasion, “What’s unique about New York? Is there anything special about a New York divorce? Very wealthy people, known people, famous people.” I will say this. What is unique about New York is we get everybody – represent an Eastern Europe Oligarch, or a well-know gallerist, or an academic, or a sports figure, or a health coach, a teacher, a lawyer. Lawyers are terrible clients. You get everybody. And, I think that is kind of unique in New York. We get international divorce issues, I think more than other jurisdictions, and we have a bunch now that we’re dealing with.
Also, you get different categories of assets that you may not get in other places, such as alternative investments like collectibles, stamps, cars, coins. I mean, that happens everywhere, but I think you get a lot of that in New York – proprietary interests on intellectual property, those kinds of things that are unique to New York. But, the truth is, the famous people, the wealthy people, they have the exact same issues as everybody else. Something unique to their issues other than, unfortunately for them, sometimes it’s that their issues are played out in public. And, usually, they ask the lawyers to keep discretion. They like to keep the courtroom closed from reporters and things like that to maintain their privacy.
But, generally, the top 1% are just like everybody else. There’s nothing special in terms of their issues. And, in fact, just to give you an example, and I just say this from the outside, Angelina Jolie and Brad Pitt. Their dynamic and, again, I’m not involved in this case, and it’s only from what I’ve read, but I’ll make a few assumptions about that case. Number one, Brad Pitt has a substance abuse problem, and this was a relationship and a marriage that was very productive. They have children, and they’re both wildly successful. But, he has substance abuse problems. How do I know that? Because, his parenting time is limited. Initially, he needed to have third parties present during his parenting time. What is that? That tells me that the judge felt that the children might have been unsafe alone in his presence.
We also know that for the past year, since the separation, he has stayed off the radar. He is working on himself. He is not out in public. So, that tells me that he is getting treatment, and he’s trying to heal. And, apparently, now he’s doing better, and he’s asking for more time with the children which makes sense. And, frankly, the courts love somebody who went into rehab. They’re the best parties in the world. Why? Because, those are the people that are reflective. Those are the people that have had a hard time, have had issues, and have worked on themselves. People who are reflective and who have worked on themselves are better parents.
So, it’s okay if you’re not perfect if you faced it and you worked on it. And, that appears to be what he did. However, she is having difficulty letting go of the children as reported in the press. She’s objecting to his expanded request for expanded parenting time. That is also very typical because she had witnessed, presumably, years of him being high or drunk or whatever it was around the children. And, so, it’s hard for her to forget those memories. And, it’s hard for her to trust the fact that he is now sober. So, she’s tight with the time. That’s understandable, too.
Of course, the judge threatened her, and said, “If you don’t let go, you’re going to have problems with the children.” And, the dynamic, then, in terms of custody went to her initially but then swung to him. And, these things go back and forth for years, frankly. But, hopefully, they’ll work it out, and it seems like things have settled down a little bit.
Audience Member: Since you’re discussing the wealthy, can you say something about divorce in the presence of a prenup?
Dror Bikel: Well, I can say a lot about it. Here’s the thing about prenups. If they’re well written and well thought out, they will be enforced, and the divorce will be in accordance with the terms of the prenup. But, I will say this, and this is one of the reasons why I’m very shy of prenups.
There are two types of people that want a prenuptial agreement. Type A – second marriage, somebody four years older or older, widower divorced with children, or divorced with children. Those people, they don’t want to fight about money. They have a career. They have assets. They have children. They’re only going to get into a relationship if they have an ironclad prenup, and if the relationship doesn’t work out, they don’t have to fight about money. And, I understand that. And, that makes some sense.
However, sometimes, you get younger people in their 20’s… I mean, who in their 20’s has really done much? Right? Not everybody. On average, most people in their 20’s, after college, get things started. They come from wealth, and the families want them to do a prenup. And, that’s a problem because the person who doesn’t come from the wealthy family is often asked to waive very important rights.
For example, if the husband comes from a wealthy family, and the family says it wants a prenup that says that they’re going to buy him an apartment on the Upper West Side of Manhattan, and let’s say, a 3-bedroom costs $3 million. It costs more, but let’s just use $3 million. If they separate and it’s an all-cash purchase, if they separate, that apartment goes to him and she has to vacate the apartment within 90 days.
Which, on its face, may sound not the most horrible thing. While they’re married, they get to live in this great apartment and great neighborhood. But, what’s the reality? Fast forward 10 years. They have three children in private schools. She’s at home with the kids. One of the kids has special needs. So, she dropped her career as a physician to take care of the children and, particularly, this one child. And, he works, and let’s give him credit, he’s a good guy, and he’s not addicted to anything. He’s not abusive. He just wants out of the marriage.
She now has to vacate after three years? Where is she going to go? I mean, she can’t afford to live on the Upper West Side of Manhattan. Where is she going to go? God forbid, the Bronx, where I live? I mean…And, the children, they’re in a private school in Manhattan. They’re not going anywhere to the Bronx.
Audience Member: Doesn’t a prenup take care of that?
Dror Bikel:Well, it depends what the prenup says.
Audience Member: After so many years of marriage..with x amount of time?
Dror Bikel: It depends what the prenup says. Right? You have to negotiate all those points, and it depends what the prenup says. And, to be honest with you…I had a case where the husband-to-be came from a lot of money. He didn’t even know his parents had so much money. They never told him. It was like $50 million. He had no idea, actually. And, their lawyer had the most complicated prenup. It ended up, my client, the woman, signed it, but it was very distasteful, and I wasn’t happy about it.
A couple weeks later, the same kind of fact pattern and, again, I had the wife-to-be, and I told her, “What are you doing? Do you really need to sign this prenup?” And, I explained to her all the things she was waving. And, her response was, “Screw him. I’m not getting married.” And, I gave her a hug, and I’m like, “Thank you. I just did this a couple weeks ago, and I feel so oily about it.” So, you know, you got to be careful with these things and particularly the young people. If you’re in a second marriage, it’s okay. You kind of understand it when people are older, and they come to it with children and a career. But, the young people, you have to be careful with it.
Audience Member: What about parental alienation?
Dror Bikel: So, what is parental alienation? I’ll tell you an alienation story. Parental alienation is when one party, and statistically it’s almost always the mother, one party with a young child orients the child against the father so severely by disparaging the father that the child becomes alienated, and the characteristics include not wanting to see the father, calling the father by his first name, not calling him “Dad,” and blaming the father for the divorce and for whatever else. It’s terrible. It’s hard to fix. I mean, we’ve represented alienators. It’s hard. You try to get them mental health treatment, but it’s….Matt Cooper, the judge I spoke about before, is an exception. Most judges in Manhattan will not make the alienated child be with the father. They won’t do that because it’s too hard on the child for fear that it puts too much stress on the child and, as the child gets older, for fear that the child will run away, which happens.
So, the courts, in some sense, reward the alienator. It’s something you have to nip at the bud very early, but I’ll tell you a case.
I represented a guy, let’s call him “Scott.” And, Scott’s in finance, and he’s very successful. And, his wife, let’s call her “Fran,” did not work, and they had two kids. And, their son, an eight-year-old, and we’ll call him “Jimmy”. Jimmy, when he was born, he was born with allergies, including peanut allergies, soy, and an allergy to cow’s milk, which is very common. Fran, the wife, took him to the best allergist in New York, an allergist named Scott Sicherer. And, these were usual allergies that are detected by skin prick tests and blood tests. For those of you that have had it for your children, you know what I’m talking about.
Jimmy had these allergies. But, over time, he began to get over these allergies, in particular, the dairy allergy. And, Scott, my client, began to give him pizza and ice cream, and he seemed to be fine with the allergies. Suddenly, they’re getting divorced, and Fran says, “Well, he now has another allergy to cow’s milk, a very severe allergy called “FPIES, Food Protein-Induced Enterocolitis Syndrome.” I had never heard of that.
Scott tells me it’s nonsense. “I give Jimmy ice cream all the time. I know she’s nuts. I don’t know what she’s talking about.” But, Scott Sicherer, the allergist, writes in his notes that accordingly to the mother, this child has symptoms of FPIES, according to the history as reported by the mother. He has FPIES.
So, what do I know? And, frankly, my client, he’s a very successful guy. But, on these things, he’s not going to win any awards. So, I don’t really trust him, but it’s a problem because Fran, the mother, is seeking to have my client’s parenting time supervised by a babysitter because he doesn’t accept this allergy and he is putting Jimmy’s life at risk. Why? Because, when you have FPIES, and you ingest cow’s milk, you vomit profusely, get dehydrated, need to be hospitalized, and can die from it. That is the claim of Fran’s attorney in court. And, my client, Scott, is telling me, “He doesn’t have it. Maybe he has a little sensitivity.” I’m like, “Scott, what are you talking about?” But, that’s what he’s saying.
So, the only thing I can think of, and it’s an important issue because if we’re wrong, she’s going to get custody. No question. He’s endangering the child. What is he thinking even? But, for some reason, I kind of trust him on this one. So, what do I do? I have to find an allergist to go through these records. But, the problem is, there aren’t a lot of allergists that actually testify in court. They’re not like orthopedists or oncologists who are in court all the time on malpractice issues. You never see an allergist in court. There’s nobody who’s interested in looking at it.
The only person I know is a guy I know from my synagogue who treats my son. He’s the only guy I know. So, let’s call him “Brian.” So, I see Brian in the synagogue, and I said, “Brian, will you do me a favor and look at these records of this kid. The mom is saying he has FPIES. His dad is on Mars. What do I know? I don’t know.” And, Brian says, “Who’s the allergist?” And, I said, “Scott Sicherer.” And, Brian said, “Oh, my god, Scott Sicherer. First of all, I applied for a job with him, and he didn’t hire me. But, he’s the best allergist in the country. Perhaps, in the world. Whatever he says is true. I’m not going against Scott Sicherer.” And, I said, “Brian, I’m not asking you to. Just review the records and let me know what’s going on?”
So, he did. He reviewed the records, and sometime later, he came to me and he said, “Dror, Jimmy does not have FPIES.” I said, “Are you serious?” He said, “Absolutely not. But, there’s only one way to find out, and that’s through a food challenge. The kid needs to go to the allergist and, actually, do a food challenge.” And, of course, Fran, the mother, is not agreeing for Jimmy to have a food challenge because he had symptoms of FPIES a couple months earlier, and it’s not healthy for him so soon after having symptoms to have a food challenge. “He’ll have the symptoms again. It’s terrible. It’s dangerous. No way. I’m not doing a food challenge.”
So, we have a trial. It’s the only way to resolve this. So, we have a trial on Jimmy’s FPIES, and the judge is Deborah Kaplan, who I know very well. I’ve appeared before her for years. And, Brian is now on the witness stand. And, we have Jimmy’s medical records projected on the wall of the courtroom. And, Brian, the doctor, the allergist, is making all these graphs and pictures about proteins and antigens, but he’s an excellent witness, and he explains that a child who becomes desensitized to a food doesn’t suddenly become resensitized later. And, Jimmy had gotten over his dairy allergies, so it’s very unusual for him to now become resensitized to cow’s milk. And, by the way, FPIES only happens to infants, not to eight-year-olds. I’m like, “Really?”
However, we have a problem which is that my adversary, let’s call him “Michael,” subpoenas all of the communication between me and Brian, the doctor, which I had not anticipated. And, of course, Brian brings all of my emails between us to court. And, of course, I’ve known him for years. He’s a friend. “Oh, my god.”
So, the lawyer, Michael, sees these emails, and he says, “Oh, my god. I struck gold. They’re friends. They socialize together. Their kids had play dates together.” And, why is that important? That shows that Brian is biased. He’s not an objective witness. He’s biased. He’s coming in, he’s testifying to what I told him to testify, and Michael is cross-examining Brian and saying, “Oh, my god, your daughter and Mr. Bikel’s daughter went to Kidville together. Didn’t they?” And, my client, Scott, is looking at me like, “You did?”
Anyway, Judge Kaplan gets over all of that, very embarrassing moment for me. One question, however, Brian did not have to answer, which is when Michael, the lawyer, asked him, “Has Mr. Bikel referred you any patients?” And, of course, he treats my son. So, I had a mini-heart attack and objected on the ground of confidentiality. And, the Judge sustained my objection. And, it went nowhere. Phew!!
But, anyway, Brian was such a good witness, Judge Kaplan ordered a food challenge. And, Jimmy went to Dr. Sicherer’s office, and what they do is, they administer small amounts of dairy, wait for a reaction, and then a little more, and wait for a reaction, and then a little more. The whole process takes a couple of hours. And, yes, you stay in the doctor’s office all day.
So, of course, Scott is texting me. I’m texting my wife who is like on the edge of her seat. I’m texting Brian because he wants to know. And, Scott is saying, “Well, first dose Jimmy ingested, no reaction. Second dose, no reaction. Third dose, no reaction.” So, he passed the food challenge. He did not have FPIES.
Fran lost custody, and Scott has legal custody. Legal custody, which means, the authority to make decisions over Jimmy’s medical care. That is an example…That’s not necessarily alienation. It’s just plain craziness. Diagnosed – “crazy.” We get a lot of that.
Audience Member: What was the basis of the mother losing custody?
Dror Bikel: Well, her judgment. And, she lied about the symptoms. There was a lot of dishonesty in her presentation to the court.
Audience Member: In New York, how often is mediation or arbitration used or even collaborative used to resolve divorces as opposed to trial?
Dror Bikel: That’s a good question. I don’t know because my clients don’t do that.
Audience Member: It’s not mandatory?
Dror Bikel: No. It’s not mandatory. It’s because, by the time you get to me, that stuff…. That’s not what we do. So, I have no idea, actually.
Audience Member: It’s mandatory in many states.
Dror Bikel: Yes, it is mandatory in some states. Not in New York.
Audience Member: How much does such a thing cost?
Dror Bikel: I don’t know how…I mean, putting aside this case, people spend an insane amount of money. Insane. Seven figures on these divorces. But, the conflict is so...sometimes, it’s daily. Sometimes, you need a team of lawyers to keep up with it. Some of the financial issues… There’s some very… We’re dealing with very complicated assets. Galleries. I mean, how do you value the art in a gallery with hundreds of pieces of art, some owned prior to the marriage, some purchased during the marriage? But, the ones purchased during the marriage came from art that was owned prior to the marriage. There’s separate property….hundreds of pieces. It’s so complicated. But, it’s worth millions and millions of dollars. To untangle that requires experts and teams of lawyers. It would make your head spin.
Audience Member: On the dollar side, given that kind of expense, do the people involved generally understand that kind of expense? If they run out of money in the middle, then what happens?
Dror Bikel: Of course, we always represent… We don’t care about how much money they have or don’t have. No. The thing about New York, a lot of people who make a lot of money have no money. The consumerism, the spending, is insane. People think money is like Monopoly money. So many people have no value… It doesn’t have a value to them. People who earn a lot of money… People who earn an unimaginable amount of money spend it all.
I mean, I have a case where the guy earns $1.5 million. He owes a million dollars to the IRS.
Audience Member: Weird question.
Dror Bikel: Don’t do it.
Audience Member: Do you ever see reconciliations among the clients that you service?
Dror Bikel: No. It is so acrimonious. If I ever see a reconciliation. No. It’s so acrimonious when you get to us. I don’t see how people can come back together. Our job is to build our client up and to show faults in the other side. That’s easy to show. Everybody has faults. So do I. Of course, I do, too. It’s easy to do. And, I’m parenting, and our money, I’m mean, it’s terrible. It’s hard to recover from that. I mean, these divorces are awful. I don’t recommend it.
Audience Member: What’s really awful about this is, after all is said and done, they still have children between them and their lives are still connected. Are they going to be able to sit at their kid’s graduation? Are they going to be able to co-parent? That’s the tragedy of all of it.
Dror Bikel: I have a client from 2007 who had been divorced for 10 years. Same crap from 11 years ago.
Parent coordinators, in a high conflict situation, what can they do, really? We push people to parent coordinators, and parent coordinators are kind of therapist types that are experts in high conflict divorces. But, they’re not… They can’t do any better than the courts, honestly. We push people to parent coordinators just to get them away. But, they come back.
Audience Member: Are these cases tried before a judge or a jury? And, if it’s a jury, do you have a part in selecting the jury?
Dror Bikel: Bench trial.
Audience Member: With just the judge?
Dror Bikel: Yes. It used to be grounds if you’re trying in front of a jury. I mean, in my prior career, I did jury trials. But, the jury trials are fun. Much better than bench trials. But, it’s not appropriate for this area.
Audience Member: Do you have any experience involving in recognizing if children are lying in these situations, like, say the husband and wife were about to get divorced and an eight-year-old child who’s just spent the weekend with the father and comes back to the mother, and the mother says, “Did Daddy touch you here?” And, the child says, “No.” And, the mother says, “Well, if you don’t tell the nice judge that Daddy did touch you there, Mommy’s going to jump out the window and kill herself, and it’s going to be your fault.”
Dror Bikel: I don’t know how to answer that. Let me say this, we get calls all the time where a client would say, “My child wants to commit suicide, and I’m taking him or her to Bellevue Hospital for psychiatric treatment.” And, my response usually is, “Well, no surprise there the way you’re behaving and your spouse. I mean, what do you think is going to happen?” I mean, “Yes, of course. Are you surprised? I mean, you’re nuts, and so is your spouse.”
Audience Member: Can you tell that the child is lying?
Dror Bikel: We don’t have contact with the children, nor do I want it. They have their own lawyers. Lawyers get appointed to represent the children and their interests. But, the children, of course, are in the middle. It’s the worst. And, it’s part of parental alienation, disparagement. It’s terrible. What happens is, in seriousness, the children lose the safety and trust that you have in parents that your parents can take care of you. They lose that because the parents are fighting. That gets frayed, and it leads to mental health issues, relationship issues, educational challenges. The children are a mess. It’s awful.
Audience Member: Are there one or two things that you would say prevent 90% of the cases even coming to you? I guess you already said that. Because if it gets to you, it’s already a disaster. So, are there one or two…? I’m thinking about legal things. I’m not talking like “be nice to your wife,” or “be nice to your husband”. I’m just thinking in terms of legal, prenup things, or stuff like that.
Dror Bikel: Yeah. Sure. Prenups. But, you can’t do an agreement about children and custody on a prenup because the children aren’t born yet. And, also, for other issues, the court maintains authority over the children. So, prenups, no. Again, it goes back to this issue of anger. And, so, it’s okay to be angry. It’s a question of how it manifests itself, and if people can learn more self-control and to behave more generous. But, divorces, these cases are so complicated. You have financial issues and custodial issues. The issues are so broad, and custodial issues involve parenting time, what school, what doctor, are there special needs, what services? Religion. Oh, my god, people go nuts over this. Orthodox Jews will fight over which rabbi...
I had a case where there was a Korean-American woman married a Jewish man and their daughter… She did not convert to Judaism, but the daughter did. And, they were getting divorced, and the mother said, “Look, I did that when we were married, but I don’t agree to it anymore. We’re getting divorced. I’m Protestant. I want to raise her as a Protestant according to my religion. Why do we have to do his religion?” And, I said, “Well, what does that mean? Is the child going to have a Bat Mitzvah on Saturday and confirmation on Sunday?” But, I don’t think she’s necessarily wrong.
Anyway, we went to trial. I had to subpoena the rabbi who did the conversion because, as part of the conversion, she had to promise that she wouldn’t introduce any other religion to the child. Otherwise, the rabbi would not have agreed to do the conversion. So, she consented to this long term. He won on that issue. However, fast forward a couple years.
The Appellate Courts has said that the dad butts up against the 1st Amendment, actually, in religious rights. And, she does have a right to raise this child. And, if the law was as it is now, she would have the right to raise the child in whatever religion she sees fit. But, that’s because of recent case law. Back then, it wasn’t allowed. So, the husband won. Not a very likable guy even though he was my client.
Audience Member: I read this story. I’m in New Jersey. There’s this business that grew. And, the founders set up some kind of trust for the son. When the son gets married, he gets a million dollars out of his trust. So, the son had five short-term marriages, and he got five million dollars.
Dror Bikel: That’s smart. I don’t know if it’s fraud, but there’s a very well-known fraud lawyer there in the corner. You can ask him. I don’t know. There was a fraud on a trust. I don’t know if it’s fraud.
Audience Member: What are the most common ways an attorney tries to pierce a prenup?
Dror Bikel: What are the most common ways to pierce a prenup? So, here are ways. I know what’s common, but duress is a biggie. So, what happens, the person who wants the prenup will wait till the eve of the wedding. Nice. Right? I’m telling you. These people. Who thinks of these things? They wait till the last minute. They show this prenup, and they say, “I want you to sign / Otherwise, my family… They use the family excuse. “My dad is making me do this. And, by the way, I have a lawyer. Don’t worry. I’ll pay the lawyer. Everybody’s on board, and then sign.” So, that’s duress. That’s like putting pressure on somebody on the eve of marriage. We could probably get that set-aside.
The other thing is unconscionability. Some prenups are just so one-sided, it’s like, the court can’t enforce it with a straight face. Particularly the spousal support. That’s like, the issues relating to the distribution of assets, it’s called “equitable distribution.” What you acquire during the marriage or what you had prior to the marriage. It’s more likely to leave that alone. But, the spousal support – alimony, the lifestyle type payments – that is easier to kind of get some traction in court.
Pretty much good for a second marriage. Or, if you’re married later.
Audience Member: You mentioned unconscionability. Is that measured at the time they sign it or at the time the court is looking at it? Because California changed that. Previously, they were looking at unconscionability at the time of execution at the beginning, and in the aftermath of the Barry Bonds case, California modified the statute to have it be at the time of enforcement at the end of it.
Dror Bikel: That makes more sense, actually, because you’re dealing with the financial circumstances at that time, at the time you’re getting divorced. So, that makes more sense.
Audience Member: You talked about the 1st Amendment right of the mom who wanted to raise the daughter in a particular way. What about the 1st Amendment rights of the daughter?
Dror Bikel: She was too young to opine on what she really wanted. If she was older, that wouldn’t have been an issue. She would have had a voice, which of course means being put in the middle. Which has its own problems. But, she was just too young. Usually, children have a voice when they start to be six or seven. There’s an attorney appointed for them. And, the thing about the children is, teenagers are the most important people in court. Why? Nobody can control them. So, whatever they say, they get, because the judges know they are never going to listen to the judge. So, teenagers have outsized influence in the courts.
Let me just say one thing because we’re running out of time. I am an optimist, and I’ve been married for almost 15 years, and I am a big fan of marriage. So, let me just conclude by saying, “So, what does it take to be in a good marriage and for an easy divorce?” Kindness. Just be kind. Even when you’re angry, even when you’re mad, even when you hate your spouse, be kind. Those are the qualities that will make for an easy divorce and, actually, they make for a good marriage.
Thank you very much.