May 2019

In this divorce action, Strauss v. Strauss, the husband had obtained access to wife’s iPad and private text messages. He falsely told her that he did not have the iPad and that it was lost. The husband did provide the text messages to his counsel. However, it was not until two years after the fact that it was disclosed that the husband was in possession of the iPad and text messages They announced that they intended to use the text messages at the parties’ custody trial. The husband did not explain how or why he was legally permitted to retain wife’s iPad without her knowledge, and to access and take possession of wife’s personal data located on her iPad.

The lower court, New York County Supreme Court Justice Deborah A. Kaplan, granted the wife’s motion for sanctions and awarded $180,000.00 in fees to the wife’s counsel, Cohen Clair Lans Greifer Thorpe & Rottenstreich LLP, for the “frivolous conduct” of her husband and his counsel.Continue Reading Husband and Counsel Sanctioned for Taking Wife’s iPad and Keeping Secret for 2 years

It took nine years to affirm a five-year maintenance award. In an April 24, 2019 decision of the Appellate Division, Second Department, the Court in Rogowski v. Rogowski affirmed a March, 2010 divorce judgment under which the wife was awarded maintenance for five years of $2500 per month plus 60% of the husband’s annual employment bonus in excess of $14,200. The action for divorce had been commenced in 2008.

The Court held that held that Nassau County Supreme Court Justice Arthur Diamond did not improvidently exercise his discretion when determining the amount and duration of maintenance. The Court emphasized the parties agreed that the wife would quit work and care for the children, and the parties’ respective incomes and future employment prospects.Continue Reading Maintenance Award of 60% of Annual Bonus Is Affirmed

The separation agreement was the product of mediation; the wife was afforded the opportunity to consult with counsel; and the wife elected to sign the agreement, notwithstanding the advice of counsel not to do so.  “These facts, standing alone, do not shield the separation agreement from judicial scrutiny. The validity of the agreement is dependent upon an examination of the totality of the circumstances, including an examination of the terms of the agreement, to see if there is an inference of overreaching.”

So held the Appellate Division, Second Department in its April 24, 2019 decision in Mizrahi v. Mizrahi. Reversing the decision of Queens County Supreme Court Justice Margaret Parisi-McGowan that upheld the agreement without a hearing, the appellate court also noted the record disclosed no information regarding who retained and paid for the services of the mediator, and how the mediator arrived at the substantive terms of the agreement.

The Second Department noted:

because of the fiduciary relationship existing between spouses, a marital agreement should be closely scrutinized and may be set aside upon a showing that it is unconscionable or the result of fraud or where it is shown to be manifestly unjust because of the other spouse’s overreaching. To rescind a separation agreement on the ground of overreaching, a wife must demonstrate both overreaching and unfairness.

Here, the court held that without a hearing to determine the totality of the circumstances, including the extent of the parties’ incomes and assets and the circumstances surrounding the execution of the separation agreement, it could not be determined on this record whether equity should intervene to invalidate the parties’ separation agreement.Continue Reading Inference of Mediated Separation Agreement Invalidity Sufficient to Warrant Hearing