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.


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The failure of a spouse to disclose a material change in facts that occurred during settlement negotiations may result in an invalidation of the related settlement provisions.

So held the he Appellate Division, Third Department in its May 11, 2017 decision in Flikweert v. Berger, invalidating one paragraph of a divorce settlement separation agreement and remanding the matter to address the appropriate equitable distribution of the funds in issue.

The parties were married in 1997 and had one child. In June 2014, the wife commenced this action for a divorce. After extensive negotiations, the parties executed a separation agreement on September 15, 2015 that addressed issues including equitable distribution, child support, custody and spousal maintenance.

Paragraph 21 of the separation agreement concerned the wife’s ownership interest in her employer, a privately held company. The wife began employment with the company in February 2012. In August 2013, the wife was awarded unvested equity incentive units by the employer. By September 2015, half of the units were vested.


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Collection of popular social media logosWith the increasing use of social media evidence, what may a lawyer do to gather the evidence (or to prevent it from being gathered)? More and more, social media is finding its way into court cases. Family law matters may be leading the way.

A 2013 Third Department decision affirmed the imposition of an order of protection against a mother prohibiting her from posting any communications to or about the children on any social network site (prior blog post). Several decisions have made use of material posted on Facebook (see, e.g., Terzani [2014]; Elissa N. [2013]; B.M. [2011]). A 2015 case authorized Facebook as a method of court-approved substituted service of a divorce summons. A 2014 Family Court case authorized such service of a child support petition (prior blog post).


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A party in a divorce action who seeks to compel a journalist to turn over information or documents must meet an extraordinary burden.

So held New York County Supreme Court Justice Donna M. Mills in an August 21, 2014 decision Matter of Hamm (Zuckerman).

Petitioner, Sue Ann Hamm, and her husband, Harold Hamm, are parties to an Oklahoma divorce action. By this application, Ms. Hamm sought to enforce a subpoena issued to New-York based journalist Gregory Zuckerman of the Wall Street Journal, author of the book, The Frackers: The Outrageous Inside Story of the New Billionare Wildcatters, in which Mr. Hamm is featured. Mr. Zuckerman cross-moved to quash the subpoena and for a protective order preventing Ms. Hamm from deposing him and obtaining the materials demanded.

According to Wikipedia, in 2012 Hamm was ranked by Forbes magazine as the 30th richest person in America and 76th richest person in the world, with a net worth estimated at $11 billion, a figure increased to $17 billion in early 2014. In 2012, presidential candidate Mitt Romney named Hamm as his energy advisor, and thereafter Hamm made substantial monetary and advisory contributions to the election effort.

Here, Ms. Hamm sought documents and testimony from Zuckerman about topics in the book, arguing that Mr. Zuckerman had unique insight and knowledge concerning a pivotal issue in the divorce case of whether or not Mr. Hamm’s efforts, skills or expended funds contributed to the value of the marital estate. Ms. Hamm provided the Court with excerpts from the book which indicated that it was based on interviews with numerous witnesses, including her husband, who had personal knowledge of material facts about those contributions.


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The calculations required by the C.S.S.A. to be made by an arbitrator in child support determinations provide the “extraordinary circumstances” needed  to warrant court-ordered disclosure of documents from a self-employed ex-husband. Such was the ruling of Kings County Supreme Court Justice Jeffrey S. Sunshine in his November 6, 2013 decision in Weisz v. Weisz.

In 2003, the Weisz’s had entered into a stipulation of settlement of their divorce in which they agreed that all controversies, disputes, or interpretation of this agreement, would be arbitrated by a specified rabbi. The 2004 judgment of divorce incorporated by reference that stipulation which survived and did not merge into the judgment.

In 2012, Ms. Weisz brought on an order to show cause seeking a stay of a post-judgment arbitration proceeding and the disqualification of the specified rabbi as the arbitrator. The stay was granted as to custody and visitation issues, but denied as to all financial issues.

The issues to be arbitrated related to an upward modification of child support, child support arrears, unreimbursed medical arrears, child support statutory add-on arrears, tutor expenses and spousal support.


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Scheinkman photo 2.jpgFrom the “You Can’t Make This Stuff Up” Department:

During the course of this Westchester County divorce action, Elizabeth Perry “engaged in inappropriate litigation behavior.” She refused to comply with court orders to produce documents or to submit to an examination before trial, she secreted assets (including millions of dollars of cash assets), and she apparently illicitly acquired documents and computer files belonging to her husband, Jeffrey.

The July 17, 2012 decision of Supreme Court Justice Alan D. Scheinkman (pictured) in Perry v. Perry, resolved a motion prompted by the wife’s alleged transmission to the husband of an unsigned, haphazardly redacted and truncated letter from an undisclosed attorney writing to “confirm” an understanding with the wife and which recommended the filing of a civil RICO action against the husband in the United States District Court.  The document suggested that the litigation would be based on the husband’s failure to fully disclose his income and assets on his Statement of Net Worth.

Mr. Perry alleged that at the outset of the case, his wife’s first of 11 attorneys in this 19-month pending action made similar allegations. Although the husband attested to having provided tens of thousands of pages of documents, the wife refused to provide any.

It was also alleged that the wife had intercepted some nine boxes of files intended for the husband and hid them. Ms. Perry apparently orchestrated the hacking of her husband’s computer, including privileged matter. Mr. Perry alleged that in order to circumvent a restraint imposed by the Court, his wife put the housekeeper in a disguise and directed her to take a taxi to a storage unit in order to remove a suitcase full of jewelry. It was also claimed that Ms. Perry emptied a money market account of $5 million and removed valuable furniture, artwork and mirrors from the marital residence. Further, recent bank information indicated that of the approximately $11.5 million held in a particular Chase account of the wife in April 2012, there is only just over $1 million left.

On non-financial matters, the wife attempted to involve the police and commenced a now-dismissed family offense proceeding when her husband technically violated a driveway-pickup order when he entered the former marital residence in Scarsdale in order to convince his daughter to go with him on a planned vacation trip to Australia. As it happened, his wife’s absence from the home was also likely a violation of that portion of the order that required her to be inside the residence. While Ms. Perry’s effort to involve the police was not wholly successful (she did get Homeland Security officials to detain Mr. Perry and the children briefly upon return to this country), she obtained an ex parte Family Court temporary order of protection, which she used to derail the husband’s access to the children for a time.

Mr Perry also believed it was his wife, after Justice Scheinkman previously directed that Mr. Perry have custody of the children, who anonymously complained to Child Protective Services that the children were being held against their will at Mr. Perry’s residence. This claim was investigated and found to be unfounded.


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If a spouse wilfully fails to provide financial information during the discovery phase of a divorce action, one remedy may be an order of preclusion under C.P.L.R. §3126.  Thus, an August, 2010 decision of the Appellate Division, Second Department, in Raville v. Elnomany, affirmed the preclusion of the husband “from offering financial evidence at

Man stealing data from a laptop iStock_000013972877XSmall.jpgIn her June 25, 2010 Shreiber (PDF) decision, Brooklyn Supreme Court Justice Delores Thomas denied a wife’s second motion for the wholesale inspection of her husband’s (previously-secured) computer hard disk drive. A prior motion had been denied as premature and because the activities of the appraiser court-appointed to evaluate the husband’s solo law practice might