Corey Shapiro Divorce Attorney + Strategist

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Macklowe Divorce Shows How High Emotion Equates to Short Term Thinking

In a pair of glittering auctions set for November and May, the $600 million art collection of Harry and Linda Macklowe will go on sale, the final unwinding of the couple’s marriage, which lasted almost 60 years and ended in a 2016 divorce.

The divorce played out in the media mainly because the parties were wealthy, high-profile litigants, and Harry Macklowe, who was almost 80, was leaving his longtime wife for a younger woman.

The main bone of contention between the parties (aside from their emotional conflict) was how to divide up the art, which they started buying when they were in their 20s. Over five decades, they carefully cultivated a museum-quality collection. The lots are going on the block, including masterworks by Alberto Giacometti, Mark Rothko, Cy Twombly, William de Kooning, and Andy Warhol.

Sotheby’s, the auction house that landed the sale, calls it “one of the most important collections of any collecting category ever to appear on the market.”

The question that runs through my mind is how this couple could simply dissolve this “life’s work,” something that defined and had great meaning for both of them, and put it all up for sale for strangers to buy.

It is as if Jeff Bezos lost control of Amazon in his recent divorce. Yet, the Bezoses managed to work out a way to hold onto Amazon while the Macklowes are letting their prize collection scatter to the highest bidders. Yes, they’ll walk away with a tremendous amount of money in the bank. But they’ll each pay a high emotional price as they lose their connection with the art they loved.

To understand how this travesty came to be, it may be helpful to review the three common options of dividing property in a divorce, plus a fourth one—donation—that the parties could have considered if they were thinking strategically and long-term as Bezoses had done in their divorce.

Even the most “everyday” divorce involves splitting up shared resources that reflect the parties’ values, tastes, and identities. Without a dividing structure in place, deciding who gets what can be as chaotic as if gifts were not labeled on Christmas morning and you had a household filled with children. It’s possible that no one will get what they truly want.

The most Bezos-like results come to those who take the step of calmly considering both the financial and the emotional value of what’s being divided and look for a fair, creative process that allows room for both.

Option A  - A Draft (You Pick And Then I Pick)

The parties could start the process by flipping a coin. The winner gets the first right to pick an item first. The other party would pick next. The parties would alternate until all items were selected.

  • Pros. Efficient.

  • Cons. It may not be fair if one item is worth much more than other items.

Option B – Appraise

The parties could hire a neutral appraiser to value items like artwork and could then exchange pieces of similar values or make a payment to equalize any small differences.

If parties disagreed with the value of the neutral appraiser or would not agree to engage a neutral appraiser, then the process would become a battle of experts, with both sides hiring their own appraisers.

The court would then hear testimony from both experts and make a finding as to value if there was no settlement.

This is what happened in the Macklowe divorce. The competing experts were so far apart that the court could not determine fair market value and ordered the collection sold.

  • Pros. Fairness

  • Cons. It could turn into a battle of the experts, which may lead the court to order the property sold if the experts are far apart, something neither party may want.

Option C – Sell

The parties could sell the assets and divide the proceeds, but if the items have emotional value, their emotional value may be worth more than their financial value.

  • Pros. Cash-flow infusion.

  • Cons. The emotional value may trump financial value, yet it might not be recognized at all. There would also be transaction costs for sale.

Option D - Donate to a museum.

A fourth option to consider in a case like the Macklowes’ would have been donating all or part of the collection to a museum. The advantage there is to create a legacy, not to mention obtaining valuable tax benefits.

This option seemed appropriate to the wife, a trustee at the Metropolitan Museum of Art and The Guggenheim Museum.

  • Pros. Create a legacy that preserves a life’s work. Obtain tax deductions.

  • Cons. Lose control of the artwork.

Although there is no magical solution for dividing assets, what needs to be appreciated is that some personal property, such as artwork, has emotional and financial value. If the parties are stressed out because of the divorce, short-term thinking will likely prevail, which may foreclose other more creative options that could create more value to the parties in the long run. When emotions are running high, stepping away to see the big picture of what you want—including the intangibles—is the best way to get it.