“All marriages end. Either someone walks out or is carried out. The good ones are when you’re carried out. That’s a successful marriage.”

This is the credo of Jacalyn F. Barnett , a.k.a. The Love Lawyer. Across three decades of representing unhappy spouses in New York City, Barnett has looked steadily on the bright side of marital dissolution. She champions the view that divorce is a wonderful exception to the rule that life rarely gives you a second (much less a third) chance to get things right. Divorce is the portal to a radical do-over, and crossing that threshold to a new beginning requires courage, composure, smarts, and sound legal advice. Barnett tested and refined this heart-and-head approach in her family law practice through two brilliantly happy and successful divorces of her own.

Barnett earned a BA from the University of Wisconsin at Madison, studied at the University of London, and received a JD degree from Brooklyn Law School. Prior to starting her own firm, she was the head of the matrimonial department at the New York law firm of Shea & Gould.

Clare Cosslett: Where did you grow up?

Jacalyn Barnett: I had a wonderful, middle-class childhood growing up with two sisters in Long Island. Neither of my parents was college-educated and there were no lawyers in the family. But I was always this kid who was fascinated by law and by justice.

My parents didn’t really want me to be a lawyer. Quite frankly, they were very against the idea, especially for a girl. When I was young, my mother used to say, “Don’t run so fast. Don’t do this, don’t do that.” You had to lose games to the boys, you should not look too smart and that was the mentality of a young mother with three daughters. However, that was never a mentality to which I subscribed. They really thought I should have become a nursery school or kindergarten teacher.

My father especially was not someone who respected the law. In fact, he used to ask me legal questions, and when I would tell him the answer, he’d say, “No, don’t tell me that I can’t do it. Tell me how I can do it.” To him, being a lawyer wasn’t something to aspire to; he did not respect lawyers in general. Since no one in my family came to my college graduation, I was thrilled to have my family celebrating my graduation from law school. We went to Tavern on the Green’s Crystal Room, a then magical restaurant in Central Park, which had just opened up. My maternal grandmother, who was kosher, came to the luncheon. She never would have gone to a non-kosher restaurant for any other occasion. I felt so honored by her presence at this moment about which I had fantasized since childhood, but at the end of the celebration, even she said, “The only thing better would have been if you were a grandson.” And she meant it.

Cosslett: Well, there’s no pleasing some people.

Barnett: I was always involved in student government and was always organizing things in the community. My mother remembers me telling my third-grade teacher that I was going to be a lawyer and would sit on the United States Supreme Court. I think that was a pretty good aspiration at eight years old.

When I was a senior in high school I was determined to get my pilot’s license, so I taught piano lessons to young children in their homes as a way to earn money to pay for flying lessons. My first student was a six-year-old neighbor. Within less than two weeks I had ten students. That was a tipping point in my life. What I learned from the experience was that even in these upscale Great Neck households, where I was the wallpaper—when you’re a senior in high school giving piano lessons, nobody pays attention to you—I witnessed the reality of these children in these picture perfect homes. In that moment, I decided, “I want to represent and protect children.” I always knew I wanted to be a lawyer, and in that year, watching the incredible differences in families, I decided to do family law. Most high school students don’t think, “Oh, gee, I want to be a divorce lawyer.” Having known since third grade that I wanted to become a lawyer, I discovered from that pivotal experience that I wanted to become a divorce lawyer. My parents were in an intact marriage and nobody in my family at the time was divorced. I was just always interested in children and their rights and their voices. The only deviation from that commitment was the month after my sixth grade class went on a field trip to the UN, I thought about being a UN tour guide, it was a very cute uniform, but that was only a one-month deviation from my dream path of law.

Cosslett: You didn’t go into child advocacy ?

Barnett: I thought the grownups were really in charge and what interested me was being an advocate for children in the context of their families. I was always fascinated by family relationships and changing family dynamics. In fact, I represented my mother against my father in their divorce after they were married for more than four decades, so I appreciate how relationships change over time. I still believe my parents had a successful marriage, just not for the last 25 years of it. They each would have been happier if they had their opportunity for a do-over earlier in their lives. So many people get divorced later in life. And people do live longer. I believe that a divorce is an act of courage: a statement that, “I believe there’s a better life for me and that there’s only a limited amount of time.” If you’ve really worked on a marriage and it’s not going to work, just to be there for the sake of an endurance contest is, to me, not the way you should live your life. I think the message that I got from children who didn’t have a voice is that you really need to get involved in a timely and meaningful manner to solve the problems of family situations and to recognize that sometimes staying together is not in anyone’s interest. It really is never the same thing because every family has a different dynamic and each family’s dynamic needs to be respected as unique and not approached in a cookie cutter style. Children are sacred and deserve more respect than that.

Cosslett: To quote Tolstoy: “Happy families are all alike: every unhappy family is unhappy in its own way.”

Barnett: Exactly. What always intrigues me is how people turn around something that’s adverse. Being successful and becoming more successful to me is not fascinating. When I was in law school in the mid-seventies, I had the opportunity to be in a clinic with Judge John J. Galgay, who was then a bankruptcy judge in the Southern District of New York. There was a wave of bankruptcies, and I was an eyewitness to the positive impact that a financial restructuring could have on people.

I remember when REA Express filed its petition. I saw people sitting in the courtroom who had been affected dramatically by the company’s financial disaster. Restructuring, however, allowed companies to emerge and, in cases like a Toys R Us, to flourish. While you saw the human stories of the sadness, you also realized that if somebody got a chance to restructure things, there could be a happy ending. It may not be the happy ending that they had planned when they started the company, just as it’s not the happy ending people planned when they called the caterer and set up the wedding.

Cosslett: It’s interesting to analogize divorce law to bankruptcy law .

Barnett: Judge Galgay was a wonderful man with seven children. He was a delicious, warm human being, who demystified judges for me. I remember saying to him, “I should make a sampler to hang above your desk that says, ‘Your rupture is our rapture.’ ” I really started to understand how people sometimes need to have a do-over—another chance.

My life has been based on a do-over. I have been very happily married for almost 24 years, but it’s my third marriage—and, in fact, I represented my first husband in his third divorce. I was my first husband’s second wife, my second husband’s second wife, and my third husband’s third wife. I had to give up the dream of being anybody’s first wife.

Cosslett: Well, at least it’s almost symmetrical.

Barnett: As a family lawyer I get a front-row seat watching how people can transform their lives. I want to know what my clients have done with their second or third chances at happiness. I have been blessed by staying in contact with many of my former clients. I can tell you a really romantic story. Twenty-three years ago, a woman came to see me. She had signed a divorce agreement in which she agreed to give her ex-husband parental access with his two children three weekends a month. She then fell in love with the president of a subsidiary of Lloyd’s of London and wanted to relocate to London with the children. The children were about seven and five at the time. For me, relocation cases are the most emotionally wrenching cases because it’s one thing if someone pays X or Y to their spouse, or a client gets to live in this house or that apartment, but whether a parent gets to live and be near their child and whether or not the child is in the best environment is a life-altering decision. I can see it from both points of view and have handled relocation matters from each side. It is exquisitely fact-specific. We were very lucky. We prevailed, and the mother got to move to London with their children, and we were upheld on appeal.

Through the years, she sent me Christmas cards, and I have heard from her periodically and seen her occasionally. About six years ago I got a call. The little girl was now twenty-one. She was in New York City for the summer and wanted to come and say hi. She and her mother came by and sat in my office. This little girl, who I had last seen in front of a vending machine in the courthouse, was now a sensational young woman. She was going into her last year at Brown University. I impulsively picked up the phone and called my husband’s nephew, who I’ve known since he was ten years old. I said, “This lovely girl’s going to be in New York for the summer. Would you just take her out for a drink?” Well, they got married three years ago. So now, suddenly, the man who had had his children relocate to London almost twenty years earlier was now going to be the father-in-law of my nephew, and we’re all family. The last time I had seen the father, I was cross-examining him at trial. When I saw him at my nephew’s wedding, he was graciously charming, happily remarried with a wonderful family. My client is happily remarried. Everybody gets along and, most importantly, everybody did what was right by the kids. I am proud to have my former client and her former husband as part of my extended family.

Cosslett: That’s a great story. You chose University of Wisconsin for undergraduate?

Barnett: Yes, I wanted to go to a big university. It was an exciting time at the University of Wisconsin. It was a fabulous education, but my junior year I purposely chose to spend in London because the roots of American law derive from England. I went to the University of London for a year. It was a turning point in my life and perspective of life choices. I loved the whole structure of their legal system, with barristers and solicitors. It really made you think about how things are done and how they could be done differently. As an undergraduate, I was a history major. And one of the things that made sense to me, and I think is so applicable in law, is that you have to go to the core research. You have to go to the heart of everything. All too often you read newspaper headlines and think, “Oh, well, this is true.” I don’t mean something factual—like Michael Phelps winning a race in the Olympics—but the impression the headline alone creates, and how the attendant photograph suggests the direction of the piece, even before reading it. If it’s Hillary with a bad haircut, then you know right away that the piece will likely be negative for her. One of the things that I learned in studying history is how important it is to form your own opinion and not to rely on secondary information, which ultimately is nothing more than hearsay.

Cosslett: Did you have an opportunity to work in a law firm before committing to law school?

Barnett: To prove to my parents that I was serious about pursuing a legal career and to confirm to myself that it was a real fit, during college, I worked every summer in a law firm. I loved the environment. I loved the culture, the sight, the smell, the touch—just everything about being in a law firm. The summer between college and law school, the firm had added an incredibly cute lawyer named Michael Barnett. We were married after my first year of law school. And I was very lucky because he’s a fabulous man and he’s a very dear friend. In fact, I did his third divorce a few years ago. He always tells people I’m his favorite ex-wife.

Cosslett: You joined the bankruptcy practice at Shea & Gould after law school?

Barnett: I had gotten experience in bankruptcy from my clinic with Judge Galgay, and I fell into the bankruptcy area after law school because that’s what became available. I started working at Shea & Gould in my third year after law school as a bankruptcy lawyer.

Cosslett: They had a big bankruptcy practice?

Barnett: They did have a big bankruptcy practice, and because there were few women in the field at the time I was asked to do speaking engagements to some women’s groups on bankruptcy law, which had been dramatically revamped at the time.

When I was asked to speak, however, I talked about the interrelationship between bankruptcy and divorce, and ended up developing a successful divorce practice for the firm. When I was thirty-three, they made me partner of the matrimonial department. I wasn’t doing bankruptcy anymore, but my background in the area was invaluable. As a bankruptcy practice makes you think about all the things that can go wrong with money, a divorce practice makes you think about all the things that can go wrong in a marriage. I am a fervent believer in prenuptial agreements and co-habitation agreements. Similarly, when you are preparing a separation agreement you have to think about what can go wrong with it—issues such as enforceability. I am much more sensitive to those sorts of issues because of my background in bankruptcy.

People tend to think that bankruptcy is just about money, but that is too simplistic. If people lose their jobs and people lose their homes, they have to change more than their Facebook status, they have to change their vision of their future and of their family’s future, including all too often, the educational plans they had for their children. Take Bernie Madoff. There are countless people who could have had an intact marriage but for his bankruptcy and the shadow it cast on so many people, directly and indirectly. When law firms implode and the media reports that “X numbers of lawyers are out of work,” I don’t focus on the lawfirms breaking up, I think about the individuals that are affected by the trickling effect—the cab drivers, the service people, the childcare people, the receptionists and how their loss of employment and their loss of faith in the institution of their employer makes them challenge the institution of their own marriages. So to me, whether the disaster is a bankruptcy, a divorce, or an earthquake, what we really need to do is to create a plan to defeat the problem, not some other person. When people get married, they become a family. They’re not just going to be husband and wife—or husband and husband or wife and wife, because now we’re doing gay divorces, too. They are always going to be a family.

Cosslett: Can a lawyer maintain expertise in more than one practice area?

Barnett: I find it absolutely stunning for a lawyer to say they’re a general practitioner capable of doing anything and everything. I don’t know how anybody could feel that they know every area of practice and are willing to have people rely on them to protect their interests in almost all areas. That is very frightening to me as a lawyer. A lot of young lawyers just hang out a shingle and say they’ll do anything, whereas I won’t even write a real estate contract. I won’t do anything other than what my area is, because I think that’s what a reasonable professional should do.

Cosslett: What about a small town where a person needs to have a will drawn, or sells a house, or falls down, or gets into a car accident? Isn’t a less-than-perfect will better than no will?

Barnett: As long as you’re not dead, the will won’t matter, but if you were to die, you would have problems. My husband—my final husband, the love-of-my-life husband, the father-of-my-child husband—he’s an internist, and he’s smart enough to know when to call a specialist for different issues. I believe that, especially in such a dense-information world, it is impossible for someone to keep up in all the different areas of law. The landscape shifts so much.

Cosslett: Speaking of shifting landscape . . . in New York, do you need to have grounds for divorce?

Barnett: Prior to October 2010, you had to have fault grounds in New York to get divorced . The only alternative was if two people signed a separation agreement and the spouses lived separate and apart pursuant to the agreement for twelve months. That was the only no-fault ground. New York was the last state to change its law. As a result if your spouse contested grounds, prior to 2010, you had to engage in mudslinging simply in order to get divorced. Grounds included adultery, cruelty, imprisonment for more than three years and constructive abandonment, meaning you had to prove that you didn’t have sex with your spouse for a year and that you wanted to have sex with him or her.

Cosslett: You had to prove it?

Barnett: That would be if somebody challenged it. You’re entitled to sex once a year. May I add, I always have to qualify that the sex is “with your spouse.” There was a client who once actually asked me, “Does sex in New Jersey count? And what if I am having sex with someone else?” And I’m thinking, “Where in the statute does it say anything about New Jersey?” and “Obviously committing adultery does not fulfill your obligation to have sex once a year—it is sex with your spouse!” One fault ground, cruel and inhuman treatment, was interpreted to mean that the longer you were married, the more cruelty you were expected to endure. People were denied divorces when they were married for twenty years because it was determined it was neither unsafe nor improper to live together since the couple had done so for so long. When this aspect of the law changed in October of 2010 in New York, the Legislature added a new ground called “irretrievable breakdown for six months,” which effectively permits no-fault divorce in New York State.

Cosslett: Was there a reason that the law was so difficult before 2010 ? It seems so archaic.

Barnett: A lot of things in the law derive from either religious origins or protective instincts. In the “olden days,” people were concerned about women in long-term marriages being abandoned by their husbands. All they were entitled to was alimony and the assets in their own names. Only wives were entitled to receive alimony then. Alimony comes from the French word alimentaire, meaning food or sustenance. Since equitable distribution went into effect in July of 1980, support became gender neutral and was called “maintenance.” Since that time spousal support can be paid from a husband to a wife or a wife to a husband, and it’s more rehabilitative in nature than alimony was, meaning that it may be set to a period of years based on the reasonable expectation of how long it should take for the supported spouse to become self-supporting. And since you’re dividing marital properties equitably, there is a very different perception of marriage than before 1980. Marriage truly is an economic partnership. I always remind clients that there is no romance without finance.

By my definition, when you get married, you enter into a ménage-à-trois among you, your spouse, and the State. Unless you have a prenuptial agreement, you’re now governed by the laws of the state that you live in at the time you break up or when one of you dies. So, on the day you get married, not only do you not know if divorce is going to happen, when it’s going to happen, or where it’s going to happen—but you also don’t know what the laws will be at that point in time. If somebody had whispered “equitable distribution” to my parents when they got married in 1947, they wouldn’t have understood what the term meant. They would have thought maybe someone was taking too much of the wedding cake, whereas it really did make a difference to them four decades later, when they broke up.

Cosslett: And it’s the same point with a prenuptial agreement : you are agreeing to settle for some percentage of some unknown quantity in the future.

Barnett: That is not necessarily true. There are some people who write prenups where they completely waive any interest in the assets or income of their intended spouse. There are people who write prenups that divide property in a myriad of different ways. Some people’s prenups just deal with rights of inheritance, because when you get married under present law in New York, you automatically are entitled to one-third of someone’s estate unless you waive it. It’s called a right of election . So there’s an entanglement that’s created by the law when you say “I do” and death actually does part you. Going down the aisle you are engaged, going back up you are a potential heir to one-third of your new spouse’s estate. Each state has different laws which continually change.

When most people get married, they don’t really think about marriage as being a legal contract among the husband, the wife, and the state. When most women get married, they think about the all important dress and shoes—and I’m not minimizing their significance—especially the shoes. But to me, if your wedding day is the best day of your life, it’s a very sad statement. You have to think about what it truly means to get married. The key question you should be asking yourself before you walk down the color-coordinated aisle, is whether you are prepared to identify that person as your primary family? If somebody asks you, “Who is your family?” and your response is your mother, your father, and your siblings, and not your spouse, I think it is a very revealing statement and should give you pause about entering into the union. I see so many divorces where the family of origin remains the person’s family, and the spouse is just a companion. That emotional definition of family can be fatal to a marriage’s success.

Cosslett: Can you explain equitable distribution ?

Barnett: Equitable distribution is how property is divided in many states. On July 19, 1980, New York changed the law of marriage to equitable distribution. Until that time, everything was based on how title was held. If it was in his name, it was his. If it was in your name, it was yours. My mother raised me with the belief that, “If he loves you, he’ll put the house in your name.” And while that may be a nice Hallmark sentiment and while that legally would have been true in those days, it’s not so under equitable distribution. Title isn’t dispositive of that issue in a divorce, so my mother would have been wrong on that, but if you outlived him it would not be in his estate in determining your right of election.

Cosslett: Is equitable distribution fifty-fifty?

Barnett: No, that’s why it’s called “equitable.” Community property is a fifty-fifty split. In changing the law in 1980, New York said, “What matters is when property was acquired and how was it acquired.” So what you do is a process where you are “ICED”: identify all of the assets, classify them as marital or separate, evaluate them and distribute them. Marital property is anything acquired after you say, “I do,” which is the day you get married until the day you say, “I don’t,” which is the day either you file a summons or sign a separation agreement. There are exceptions, of course, within that timeframe which actually make sense.

First, you identify the assets and liabilities. You put together a statement of net worth listing every possible asset and liability, bank accounts, houses, pension funds. In fact, the definition of property has been expanded in many ways: a law degree, or even a celebrity career can be evaluated and its value distributed. You then classify the assets as being either “marital” or “separate.” If you owned the asset before the marriage, generally speaking, it’s separate property, but there are variations. For example, property inherited before or during the marriage remains separate property because the person gave it to you because of who you are to them, not because of who you’re married to.

A damage award for personal injury will also remain separate property , because that’s intended to make the injured party whole. But if separate property appreciates or becomes comingled with marital property, then it becomes marital. So, for instance, if my grandmother left me a tea set and I polished it every day, and it just happened to go up in value because it was a Paul Revere set and that became popular, the appreciation had nothing to do with anything as a result of the marriage so it would remain completely separate property. It didn’t get commingled. But if my grandmother left me an apartment building, and the day she left it to me, it was worth a million dollars, and it was managed by us during the marriage and we collected rents and its appreciation was not due to market value changes, but due to our labors, the appreciation would be potential marital property.

How you acquire money is critically important. When young couples want to purchase an apartment, often their parents want to help them and they give the down payment for the home. The parents think, “Oh, isn’t this wonderful? Here’s a check for $30,000.” They write out the check to the husband and wife jointly. Well, they just gave separate property of $15,000 to each spouse and they may have to buy their child’s spouse’s share of the house back in a divorce. People don’t understand that how you do something can transform the end result. Let’s say a person has a million dollars in separate property and he or she never touches the separate property account during the marriage and it simply grows. However, during the marriage if the couple accumulates a million dollars in another account which consists solely of marital property, whether it’s in individual names or joint names doesn’t matter because title is irrelevant. If they use the marital funds, and at the time of the divorce there’s only $100,000 left in the marital account, that’s all the property that would be available for equitable distribution. The person who had never touched his or her separate property account would retain the separate property. Most people don’t think about which account they use and why they use it, much less keep the paper trail.

You need to gather all of the records to understand what you each own, and what you each owe, and what your respective income is. It is stunning to me how many people have not a clue what their spouse earns, even though they sign joint tax returns. So many people do not look and right above their signatures on the tax return it says, “Subject to penalties of perjury .” So if they want to claim their spouse is not reporting his or her income fully, they have to recognize their exposure to perjury. And many spouses often have no idea about liabilities: it can be very dangerous to marry someone who has really bad credit, or during the marriage accrues huge debts, or has a gambling or addiction problem. That problem becomes your spouse’s problem because not only is the spender not able to contribute, but the non-spender might then end up losing the home and many of the meaningful aspects of their life due to their spouse’s spending habits. Get a credit report, not only to keep your credit in good shape, but to understand what factors are considered. Divorce frequently impacts someone’s credit because someone doesn’t pay the bills on a timely basis. Late bill payment can be as serious a problem as filing a bankruptcy can be to your credit.

So after you have identified the assets and liabilities, you classify the assets and liabilities, and then you evaluate them. An appraisal is something that can be subjective in some situations and objective in others. You can look up the value of shares of stock, but there can be a range of values for any number of things. What’s the value of a house if you’re not selling it at that moment? What’s the value of a degree? There was a case, O’Brien v. O’Brien, where the husband went from being a college graduate to becoming a doctor during their marriage. The wife wanted the enhanced value of becoming Mrs. Doctor. They had gone to Guadalajara so the husband could attend medical school. The wife had made all of these sacrifices and investments for their future, allowing the husband to enhance his earning capacity. That enhanced earning capacity can be evaluated. The difference in the earning potential of the degree owner’s working lifetime as a result of the advanced education versus what the degree owner’s projected earnings would have been without the advanced degree can be calculated through actuarial tables, and then a court can determine what would be equitable for the non-degree holding spouse to be awarded as part of a property settlement, if anything. A factor to consider is what if the doctor wanted to do public medicine or became disabled, how can a court impute that into the calculation?

Timing is a big factor too. When you value something, what date do you use? Consider 2008, when the financial market collapsed. If you looked at a house in Quogue in January of 2008, valued at $3 million, it was significantly less by December of 2008. So when you get into evaluations, you also have to look at the valuation date as well as how it’s valued, and its liquidity. Valuation has become more difficult in recent years because of the economic challenges we all face. There have been major fluctuations, not only in the valuation of goods, but in people’s predictable patterns of earning.

Cosslett: So let’s say in high school you married a bricklayer who was a high-school dropout. You were supportive, you did all the right things, and he graduates business school and is now a highly-paid investment banker. When you are getting divorced, do you look at his future earning power or do you actually try and evaluate the contributions made during the time you were married, or are the two inextricable?

Barnett: You do everything. There are different types of intangibles. If somebody gets an MBA during the marriage, sometimes the student spouse is not earning during that one- or two-year period when he or she was in school, but undoubtedly their earning ability has escalated. A spouse may have invested in the other spouse, whether it’s through student loans or supporting their spouse while he or she is in school, so in a sense what a court is doing is valuing the couple’s investment into one person as if the person was a business investment by the couple.

Every marriage is as different as each snowflake. If someone says, “Let’s judge the contributions you made,” the first question should be “By what method?” or “What was the agreement that the two of you made?” This question can be difficult to answer if you didn’t write it down or actually articulate it. If a spouse says, “I’ll pick up and relocate so you can go to graduate school,” or “We’ll put you through school and then I’ll go to school,” how will that be judged years later? Even if people did have that conversation in the beginning, a lot of people probably wouldn’t even agree as to what their understanding had been.

Let’s assume we don’t know each other and you agree to meet me at Grand Central Station. If I told you I have red hair, you might think I have bright red Little Orphan Annie hair, but I might actually have auburn hair. People are not lying to each other. There is simply a misunderstanding or miscommunication because the meaning of the words is unclear. Let’s say you have two people who are getting married: one is widowed and one is divorced. The husband says to the wife, “We’re going to treat all of the children the same,” and the wife thinks, “Oh that’s great. So they’re all going to have the same education.” What the husband actually meant was that they’ll all go to college, but his children would go to private college and hers would go to community college. You have to clearly say what you mean and mean what you say.

In a divorce, all the information gets presented to the court. It will look at statistical tables to assess future earning power. It will also look at the contributions made by the spouse during marriage. If, during the time one party was in business school, the other party gave birth to three children and left the work force or ran the home and typed the other party’s papers, the judge would look at that level of contribution which had been made to the family. It would be different if a spouse was wealthy and had been unaffected by his or her spouse going to school.

Contributions can be financial or non-financial. Someone could be taking care of their in-laws. Someone could be taking care of their kids. Someone could be providing emotional support or employment advice. It really depends on what the facts are, what you want to highlight, and what side of the equation you’re on.

You can’t guarantee an outcome with equitable distribution: it depends on what other assets exist and what someone’s ability is. I think in many ways the system punishes people who are productive, because if somebody is very successful, they’re not going to be a candidate for spousal support. Rather, they potentially could be a candidate to pay spousal support.

When my daughter, Jamie, left for college, I was sad but so proud and happy for her. I realized then that if you’ve successfully raised your child, they’re independent and they will leave home. One day I not so kiddingly said to her, “Wait, if I’m a good mother, I am going to get punished. If I’m a bad mother, you’ll stay with us. Right?” There’s something wrong with the whole karma of this system, I deeply miss her but rejoice in her independence.

The same thing is true in terms of divorce in that spenders are rewarded and savers are punished. Think about this concept. If you spend freely, then you can show a need for more spousal support. If you’re frugal and save, then you have created a lower standard of living, so you would qualify for less support, if any. These are all the little things that strike me as endlessly fascinating.

Cosslett: Do you find you have more clients coming out of a given profession? And has the recent turmoil in the financial markets affected your practice?

Barnett: Because I’m in New York, a lot of clients are doctors, lawyers, Wall Streeters, entrepreneurs, that sort of thing—more than you probably would see in certain other areas of the country. It’s a terrific mix of occupations, and one of the greatest parts of my work is getting to understand the inner workings of how someone practices a particular trade and how they do certain things. Dramatic changes in financial markets affect bankruptcies because in a good market, people gobble up or expand their businesses, and in a down market, some of these businesses fail or downsize. Great economic change, either positive or negative, also directly impacts divorce because when people experience dramatic change, they ask, “Is this person truly on my team? Are we rowing the oars together?” And if you’re going through rough times, which is an inherent part of “for better or worse,” and you’re rowing in the same direction, you can succeed. But if you’re going through rough times and you don’t pull in conjunction with one another, it simply won’t work and you may have to leave the sinking ship. Marriage needs to be your sanctuary, not your prison.

Cosslett: I can understand why economic strains stress marriages .

Barnett: Marriage or any intimate relationship is difficult under any circumstance. Any real change can be stressful. A spouse with a chronic disease or a child with serious learning issues can force a couple to assess whether they are on the same page, if they agree on how to address the issue, or even if they both accept that there’s an issue. The Kodak commercials are wonderful, but they’re simply not realistic. Nobody actually gives birth to the Gerber Baby. There may be one in the ad, but as wonderful as it is to be a parent, there are going to be challenges which can torpedo the romance which led to the child’s conception.

Similarly, when times are fabulously successful it can be equally challenging for a relationship because people can become grandiose and fail to appreciate certain values. Often people say, “We were happiest when things were simple, when we were just starting out.” And I think there’s something to that. One of the lessons I learn every day from going to the office and watching what goes on in relationships is that simple courtesies to one another, simple thoughtfulness to your partner in life, can make all the difference in whether your marriage succeeds or not. If you, just for that moment, think about what you could do every day that would make the other person’s day better, and if you did that on a regular basis, how many divorces would be prevented? Too many people wait until their problems are too big. It’s like the person that ignores the root canal. You’ve got to deal with the fundamental problem while you can create a meaningful solution. Loving maintenance of a spouse now can prevent paying future spousal maintenance to a former spouse.

Maybe if you’ve been divorced before, you’ve learned that lesson, I certainly have. And maybe one of the biggest issues, too, is when people get married just because they think that’s the next step in their relationship, or because all of their friends are getting married, and then it does not end up working out. I’ve had so many people come to me and say, “I knew as I was walking down the aisle that it was a mistake but the invitations were done, the dress was ordered—I felt like Princess Di, like a lamb to the slaughter.”

Cosslett: Do you encourage people going through a divorce to seek therapy ?

Barnett: I’m a very, very strong believer that people going through any major life crisis should be in therapy. It’s really important to have the objective insight of a mental health professional, and it makes sense from an economic point of view because they’re more qualified and cost-efficient than lawyers. It’s also burdensome to solicit advice from friends, who cannot in any case give proper judgment. I think that a lot of times people impulsively jump to a conclusion simply to go forward. When people walk into my office, I always tell them, “You’re not on a conveyor belt to divorce. All you’re doing the first time is coming in for information. Knowledge is power. I can tell you what your rights and responsibilities are, but you really have to think about how your life will be different and decide what you want to do with the power of that knowledge.”

It is important to realize, however, that sometimes a therapist’s advice can have significant negative legal consequences. For instance, a therapist could say, “You should move out and give each other space.” But that could have a dramatic impact in terms of custody and support. So while you’re telling somebody that they need to be in therapy, you also have to caution them that, if there are children involved, it won’t necessarily be a privileged communication if there’s a custody battle. But I think people should have as much information as possible, legal and psychological, to make the best decision for their families and themselves. In order to be able to go through that challenging transformation of your life, you need to be as introspective and as realistic as possible.

Cosslett: Is the idea of culpability relevant to a divorce ?

Barnett: What a great question. That’s a perfect example of the eye of the beholder. When you say culpable, to some people, it means someone is having an affair. Some people really don’t care whether their spouse has an affair or not as long as they don’t bother them and make them have sex with them or if they are discreet about the trysts. To some people, culpable means that the spouse is not earning what he or she could be earning. If somebody doesn’t meet their earning potential, if someone doesn’t take out the garbage or do a fair share of the household responsibilities are they culpable? Divorce is not the morality play that people think it is.

Culpability is fact-specific. It depends what the issue is. If somebody is fighting about custody and their spouse is having sex in a room while the children are present—those things happen, believe it or not—then that would clearly be a factor about someone’s judgment and about parenting, and custody, and decision making. Does that necessarily tie to money? Well, it could tie to finances in the sense that if you’re not the custodial parent, you won’t get child support, you may end up being the one that pays child support. In terms of property division, it’s really not an issue. The percentage of people who have affairs is astronomical. I assume the courtroom is filled with active daters.

I think it would be an error to make a generalization that culpability is always applicable or isn’t always. It really depends on the issue at stake and what you mean by culpability. Let’s take a Bernie Madoff. Did Bernie Madoff wastefully dissipate assets? Yes. Does it really have to reach that level? No, but you really have to look at the situation, and what’s involved. Judges are sophisticated people. They’ve seen and heard everything, so what’s going to shock their conscience about something? If somebody unsuccessfully hired a contract killer to eliminate their spouse, that will affect equitable distribution. But the fact that somebody had an affair with his or her dentist will likely not have the same impact, nor should it.

Cosslett: I’m thinking about the perception of the person who comes to your office who is sufficiently offended or disappointed in the conduct of their spouse that they’ve come to see you.

Barnett: Everybody who comes into a divorce lawyer’s office is unhappy, either because they want out, they think their spouse wants out, or they both want out. They don’t come to show me the wedding album. That’s not the reason.

They discover that divorce is multilayered. How will it affect their present lives and future? Frequently, people focus on property and forget there are also liabilities. So we don’t just think about assets. You consider liabilities too. If you signed joint tax returns, if you have overdraft loans or contingent liabilities—any of those things—must be discussed.

Support is a separate issue. There’s spousal support and child support to consider. And then the most important issue, custody, legal and physical, is a whole other arena. A lot of people don’t really understand what custody is about. “Where do you put your head down on a pillow?” is physical custody. Legal custody is what school do you go to? What religion will your children practice? What extracurricular activities? The decision making: that’s what legal custody is about. In New York, the obligation to pay child support goes until the age of twenty-one, although custody only goes to the age of eighteen.

Cosslett: Does joint custody mean that a child’s time is divided evenly between the parents?

Barnett: It depends on the situation. If someone says joint custody, you also have to look at how the term is defined. Some say, “The parties will have joint legal custody, but if they disagree, then so-and-so is the final decision maker.” Well, is that really joint? And sometimes there are zones of responsibility. Sometimes they’ll say, “Okay, the two of you have to meaningfully discuss this area, but if you don’t agree, then the mother will decide as to, say, education, and the father will decide as to medical.” There are as many variations in custody as in a Bach fugue.

Cosslett: What if your client is behaving in a way that’s not necessarily in his own best interests because he is hurt or angry?

Barnett: That’s something that you try to address as a lawyer. My role is to be a counselor, not a decider. It is a challenge to work with people who are going through deeply emotional and stressful situations. Sometimes people are self-destructive, whether it’s intentional or not. I think one of the things that is really interesting to me is that some people are into revenge, and that’s clearly intentional. Whereas other people simply can’t get out of their own way.

There also are stages to the process. If one side hires a lawyer and says, “I want it to be about revenge,” then what does the other side do? That’s one of the thorny problems. Sometimes people claim that the issue is about children when it really is not about the children. Sometimes it’s about power and control or hurt feelings because their spouse wants to leave them. I see it from both sides of the equation, which I think is one of the advantages of representing men and women.

Cosslett: Secret gathering of information about spouses seems to be fairly prevalent. Could you talk about that?

Barnett: I was “Quote of the Day” in The New York Times on that issue: “No one cares more about the things you do than the person who used to be married to you.” The quote was about how EZ Passes are used or intentionally not used in certain circumstances. When you live in Manhattan, EZ Pass will record when you go in and out of the Island. I always look at the cash line at the toll and think, “Those are the adulterers because they don’t want to have a record of when they’re coming in or out of Manhattan.”

Similarly, ATM receipts are evidentiary. The receipt doesn’t just say how much you took out. It tells you from what branch. Most people go to the machine by their office or by their home. If they’re suddenly in a different neighborhood, that’s the neighborhood where they’re using cash because they don’t want to have a record of what they’re doing there. It’s really quite easy to find these things out.

It’s not difficult to gather information in a very legal way because so many people are careless about their use of cell phones and laptops, forgetting that their use will be discoverable later. A lot of people think if they delete a text message, that it is gone. It is not. It’s written in ink, it’s not pencil. Text and e-mails are all discoverable. Also, many people leave their computers open and just mindlessly go to all kinds of sites and leave revealing information in open view. It’s as if you had an open file cabinet.

A big “tell” is if your spouse suddenly changes his or her behavior. When you have a child, you don’t need to take her temperature to know if she is sick—you know it. If all of a sudden your spouse goes to the gym, suddenly starts to lose weight, and buys new underwear, there is an issue. Generally, if you think someone’s having an affair, they are. And then you have to decide what you’re going to do about it—if anything, because that could be just a warning bell, it doesn’t have to be the end of a marriage. Marriage can survive affairs.

People have different rules for their marriage. In my marriage, my husband knows how I feel about adultery. We discussed it thoroughly before we were married. I saw it firsthand with my father. For me it’s a deal-breaker. But I’m not judgmental about other people’s choices. I clearly told my husband, “Don’t ever stay with me for one extra day that you don’t want to.” But other people don’t feel that way. They say, “It’s comfortable. It’s not that important.”

And what might be more important to some people is whether their spouse is not living up to his or her earning potential, or whether someone’s not being a responsible parent, or if someone simply is tuned out and is just a couch potato and not engaged in life.

Cosslett: What advice would you give either law students or practicing lawyers considering a career change about how best to position themselves for practicing in the field of matrimonial law ?

Barnett: I don’t think you should practice matrimonial law unless you consider it a calling, because it doesn’t have an off button. It’s 24/7. I’ve had sleepless nights worrying about children and clients and their well-being. It can be difficult and emotionally exhausting. I get calls, texts, e-mails most every weekend, every night, all the time. There are emergency situations and sometimes people just need to vent to me so that they don’t do something that would be destructive to their life or to the case. And you have to not resent that if you choose to practice family law. You have to understand that that’s part of being supportive. I think if you look at it as a job, you should practice in another field. If you look at it as a privilege and you are inherently curious about people, problem solving, and love and its many mysteries, then it is a good fit. I know so many matrimonial lawyers who don’t enjoy the field at all. I feel blessed to do this work.

Cosslett: Why do they call you “The Love Lawyer”? Whenever I have mentioned that I’m going to go meet “The Love Lawyer,” people say, “But isn’t she an out-of-love lawyer if she’s a divorce lawyer?”

Barnett: Absolutely not. I think there are stages of love. I think divorce is just another stage of love.

Cosslett: For some people, it appears to be the stage of intense dislike.

Barnett: There are different stages and ages where a different life partner makes more sense, just like the people who were your best friends in high school. You go to the high school reunion, and you realize that you still have a lot in common with some of your former classmates—but others you think, “What on earth?” So when people end up marrying their high school sweethearts, I wonder what are the possibilities of picking a life partner at a time when you can barely pick a major in college?

People get upset when I say it, but all marriages end. Either someone walks out or is carried out. And the good ones are when you’re carried out. That’s a successful marriage.

Cosslett: Unless the remaining spouse is instrumental in the other one getting carried out.

Barnett: Everything in my work deals with love and sex. What can be better?

Cosslett: Can a divorce have a happy ending ?

Barnett: What is a happy ending? There’s no such thing as an ending. That’s really the difference. If you think of the phrase “happy ending,” then you’re thinking about the wedding day. If you think about a happy ending, then you’re thinking about the day your child graduates college. When we went to my daughter’s college graduation in May, my husband said something that resonated: “Now I understand why today he gave a commencement speech. It’s not the end: it’s a commencement.”

I think when someone gets divorced, it’s a commencement of the next chapter of their life. So happy ending to me is not what it is about. I want to know what happens to them later. There are people whose divorce I handled ten or twenty years ago, with whom I still stay in touch. I hear what happens and I hear how their children are and how they’re doing. And it truly matters to me. If that’s not the kind of person you are, you shouldn’t be doing matrimonial law. You really shouldn’t.

Cosslett: On a purely pragmatic level, do divorce lawyers bill per transaction?

Barnett: No, you bill by the hour. That’s why you tell people that they’ve got to be cost-efficient in working with professionals. You say to them, “Organize yourself and try to pull records together.” And when people come in, I say the most cost-efficient way to present information to me is to “Sit down and write your life story. Tell me how you got to this place.” Just like you’re doing this interview: “Tell me how you got to this place in your life. How did you get to be a matrimonial lawyer sitting in New York on Madison Avenue.” So I’m saying to them: “How did you end up sitting in a matrimonial lawyer’s office when that was the last thing you planned when you sent the wedding invitations?” And some of people find it very cathartic to write it out. And it crystallizes what they’re thinking. The more information they give, the better of a job I can do for them, because then I can see themes that they don’t understand or articulate.

Cosslett: Is there anything that you want to add?

Barnett: When people talk about lawyers, they always make jokes, bad jokes. When I was a little girl, I looked up to policemen, I looked up to doctors, I looked up to teachers, I looked up to judges, and I looked up to lawyers. I think that it’s very sad today that people do not assume that choosing to be a lawyer is the calling that I thought it was when I came to the profession and that I wanted it to be when I went into practice. When you said to somebody in high school, “I’m going to be a lawyer,” every teacher would smile, “Wow, that’s great.” It was a valued profession.

The reality of it is that people don’t have that feeling now. When a young person comes to me and says, “Should I go to law school and take out student loans and all of that?” If it’s not something that they feel absolutely passionate about, I don’t think that they should do it. Since the job market is so different, I don’t think that anybody should go to law school if it’s not their passion, because then I think that they’re not using their talents properly, and they will have to reconfigure their lives later. A lot of people used to think of law as a safety career, but if somebody nowadays is thinking of law as a fallback or as a safe profession, I think that’s a huge mistake.

Cosslett: I agree completely.