Why, Exactly, Is Rudy Paying $6.8 M.?

If the recent big-bucks ending to the Donna and Rudy divorce saga revealed one thing about relations between the sexes, it’s that we still tend to see money as women’s reward for giving love-or their compensation for losing it. “Donna Makes the Creep Pay,” as a Post headline put it. Men, after all, are by nature callous philanderers who will blithely walk away from a dependent wife and children. Little else would explain the $6.8 million settlement hashed out between lawyers in a tax-free “equitable distribution” of marital assets. The amount-which is to go to Ms. Hanover in addition to rights to the couple’s apartment, her $370,000 in legal fees and $22,000 in monthly child support for their two children-reflects Mr. Giuliani’s higher earning power post- 9/11. (He’s surely one of the few New Yorkers besides bankruptcy attorneys to see his income rise as a result of the tragedy.) During his 18-year marriage to Ms. Hanover, both spouses earned similar incomes-around $200,000 annually, with Ms. Hanover having a slight edge. In June 2001, Raoul Felder, Mr. Giuliani’s divorce lawyer, claimed that his client had only $7,000 in cash. But his 2002 income, swollen by fees for speaking engagements, is expected to reach $8 million. Mr. Giuliani also has hefty fees from consulting as well as an advance of $2.7 million for two books, though Justice Gische ruled in January that this is not divisible marital property.

The problem with the award is that Mr. Giuliani’s new wealth has been earned after the dissolution of the relationship, if not the marriage. Ms. Hanover, who stopped using her husband’s name in 1996, kept her work life separate from his. Although her acting and TV presenting career certainly benefited from his high profile, there is no sense in which his career benefited from his tabloid-fodder marriage to Ms. Hanover in recent years.

Here’s the question: Why does Ms. Hanover have a right to assets that were accumulated after Mr. Giuliani sought to leave the marriage and was no longer living with her? Legally speaking, the answer is pretty straightforward: Since 1980, New York State has followed the principle of “equitable distribution” of assets acquired during a marriage. The beginning of a divorce action marks the cut-off moment for a couple’s assets. While Mr. Giuliani filed for divorce in October 2000, he wasn’t able to convince the court that he deserved a divorce. New York is a “fault grounds” state (for example, adultery, abandonment, or cruel and inhuman treatment; the latter was Mr. Giuliani’s stated grounds).

This meant that it was only at the beginning of Ms. Hanover’s suit for divorce, in May 2002 on the grounds of adultery, that the couple’s assets were subject to “equitable distribution” and given a cut-off-and by that point, Mr. Giuliani’s financial situation was much better than in 2000, when he had originally filed. As to how the assets were to be divided, New York’s 1980 equitable-distribution law uses no fewer than 13 factors to determine how property acquired during a marriage is divided. One is “marital fault.”

Did Rudy’s lawyers back down because they guessed a trial would mete out worse punishment for his adultery? Stanford Lotwin, a divorce attorney at Blank Rome who handled the divorces of Donald Trump (both of them),Vanessa Williams and Diana Ross, insisted that marital misconduct “plays no part in the distribution of marital assets unless it is so egregious that it shocks the conscience of the court,” as adultery no longer does. In other words, Mr. Giuliani had nothing to fear at a trial. Mr. Lotwin believes Mr. Giuliani settled because he felt that his earnings could have been pegged even higher: “He made a business decision that he could have been hurt more than 6.8 million.” Mr. Lotwin also speculates that Ms. Hanover probably intended to stall and frustrate the divorce in an effort to get more money out of Mr. Giuliani, who didn’t have many assets before 9/11: “After 9/11, a good strategy became a great strategy.” As for Mr. Giuliani, he must also have felt the need to move on with his life-trials usually end in appeals, which would have given the case two more years of life. Another prominent divorce attorney, Harriet Newman Cohen-who has represented Howard Stern’s ex, Alison, and Laurence Fishburne-said that Mr. Giuliani’s “celebrity value as of his filing for divorce wasn’t anywhere near double $6.8 million. He paid several million dollars as a premium for ending the matter then and there and not airing his dirty linen.”

So Ms. Hanover’s award is legally sound, but whether it’s just is another question. While adultery or cruel and inhuman treatment have long been considered grounds for divorce, it doesn’t necessarily follow that they ought to be punished financially. Why does every emotional hurt require a financial Band-Aid? People who are tormenting each other ought to be allowed to dissolve their legal ties, but it isn’t clear that emotional injury can be prevented-or discouraged-by legal punishment. We could view the trouble inflicted on Ms. Hanover in her marriage as a painful but often inescapable part of life, and one that is best resolved privately.

The best explanation for Ms. Hanover’s huge settlement might be our deeply entrenched beliefs about the relation between sex and money. It’s partly because we take it for granted that every woman has her price that money seems a natural way of resolving grievances between men and women. But it’s an outdated way of thinking, and in the end it’s bad for women. The Giuliani-Hanvover settlement harks back to the days of breach-of-promise suits, when women sued men for the damage to their reputations and worth on the marriage market resulting from a broken engagement.

It may be the equitable-distribution system that’s in need of an overhaul. Before 1980, New York State was a “title state,” in which husbands and wives retained rights to assets in their names, such as their earnings, savings and acquisitions, during the marriage. Of course, in that era it was mainly husbands who had earnings, savings and acquisitions; wives had children. The system wasn’t fair then, but it might work better now that most married women work outside the home and nearly a third of them outearn their spouses. To protect women (or men) who stay home with the kids, we could make special rules for single-earner families.

Equitable distribution also makes ridiculous assumptions about the relation of spouses to each other’s career. The “corporate wife” as a full-time gig is defunct except at the most rarefied heights of business. Most wives are at jobs of their own, and their husbands are even less likely to be investing much in helping them there. It’s women who stand to lose more by laws that encourage the pooling of career efforts, since it’s women who tend to both earn less money and give more emotional support in most marriages. The idea that married couples somehow “share” careers also can’t help but affect the kinds of careers women choose. All too often, they scale down their ambitions, unconsciously believing that the true measure of their worth-defined as attractiveness-is the earning power of the man they can pull in. And most women still take the income or future income of their boyfriends into account in deciding whether they would make good marriage partners, while men don’t perform a similar calculus.

The $6.8 million that Ms. Hanover received is undoubtedly good for her and her children. It may even be fair payback for Mr. Giuliani’s mean and cowardly behavior to her. But it isn’t good for women in general, or for marriage.