Tom Griffiths, psychologist, cognitive scientist and Princeton professor, concludes his TED talk, 3 ways to make better decisions — by thinking like a computer, with the following lesson:

“You can’t control outcomes, just processes; and as long as you’ve used the best process, you’ve done the best that you can.”

Dr. Griffiths has researched the connections between natural and artificial intelligence to discover how people solve the challenging problems they encounter in everyday life. His 2016 book authored with Brian Christian, Algorithms to Live By, illustrates how the algorithms used by computers can inform human decision-making (and vice versa). The book was named one of the Amazon.com “Best Science Books of 2016” and appeared on Forbes’s “Must-read brain books of 2016” list as well as the MIT Technology Review’s “Best books of 2016” list.

In New York, most couples going through a divorce, although aware of litigation and mediation, do not know that they have a choice of a third structured process to unravel the marital relationship and transition the family through the divorce. Most divorcing couples don’t know that they have a chance to apply Griffiths’ lesson and select a process that can reduce the time, cost, anguish and damage that so often accompanies divorce litigation, yet address the shortcomings of mediation.


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Increasingly, courts have closely examined the specific decision-making roles of each parent, whether or not the parties share joint custody or one parent is awarded sole custody.

The general rule is that joint or shared custody, requiring both parents to agree on decisions, is inappropriate where parents have demonstrated an inability or unwillingness to cooperate

The alleged failure of the mediator and the husband’s counsel to advise the husband that a court need not apply the C.S.S.A. formula to the husband’s entire agreed-upon income of $1,200,000.00 per year income is not a basis to set aside a divorce settlement agreement, or its $29,500.00 per month child support obligation. So held Westchester County Supreme Court Justice Lawrence H. Ecker in his January 16, 2014 opinion in A.B. v. Y.B.

The couple involved separated after 12 years of marriage. Following three years of mediation, the parties entered into an agreement that resolved issues of custody and access to the parties’ three children, maintenance, child support, and equitable distribution. The husband is a 50% equity partner in a brokerage firm. The wife is owner and operator of her own business.

Upholding the agreement, Justice Ecker took pains to quote several of its provisions. One acknowledged that the parties had waived the “compulsory financial disclosure” requirements of the Domestic Relations Law and court rules, and agreed not to exchange Net Worth Statements. Nonetheless, the parties represented to each other that each made a full and complete disclosure of assets, liabilities, income and expenses, and that they relied on the information provided.

The agreement recited the husband’s disclosure, to the best of his knowledge, of his gross personal 2010 income as approximately $156,427.00. The parties agreed to use the 2010 income because their 2011 income was not yet available. The Husband disclosed that in no event was his income from any and all sources more than $156,427.00 in said year.

Nonetheless, for purposes of the agreement, the parties agreed to use an imputed income of$1,200,000 in computing the child support calculation under the Child Support Standards Act.

The parties acknowledged that they reached their agreement with the aid of the mediator, but that the mediator provided no legal representation to either of the parties. Further, although “the mediator may have provided information or opinions concerning the state of the law generally, neither party has relied upon such information or opinions in executing this Agreement.”

The parties further represented that each had ample opportunity to obtain independent legal counsel, and counsel [apparently recommended by the mediator] for each spouse was named.

As to the basic child support obligation, the agreement provided it was agreed that the the husband’s would pay $29,500 per month [$354,000 per year] for 12 years, 5 months, subject to a cost of living increase biennially. The husband was further responsible for 100% of discretionary expenses and add-on expenses, including private school tuition for all three children, private college expenses, camp and summer programs, religion education expenses, Bar and Bat Mitzvah expenses, health insurance and unreimbursed medical expenses.


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As noted in the previous blog, Gazzillo Ralph.jpgagreements which resolve marital rights and obligations are encouraged. They will be enforced absent demonstrable improprieties.

In his January 23, 2011 decision in Capone v. Capone (pdf), Suffolk County Supreme Court Justice Ralph T. Gazzillo granted summary judgment dismissing a wife’s action to rescind and declare null and void a November, 2008 Separation Agreement.

In January, 2010 the husband commenced an action for divorce based on the parties living separate and apart pursuant to that agreement for a period in excess of one year (“grounds” for divorce under Domestic Relations Law §170[6]). The wife responded by bringing her own action in February, 2011 attacking the agreement on the grounds that it was the result of overreaching, coercion, and undue influence. She also alleged that it was manifestly unfair, unjust, inequitable and unconscionable.

The husband moved for summary judgment dismissing the wife’s action. Justice Gazzillo noted that summary judgment is a drastic remedy, only to be granted in the absence of any triable issues of fact. Justice Gazzillo held that the wife failed to demonstrate that the agreement was unfair when made or that there was overreaching in its execution. Quoting the 1977 decision of the Court of Appeals in Christian v.Christian, 42 NY2d 63, 396 NYS2d 817, Justice Gazzillo stated:

Judicial review of separation agreements is to be exercised circumspectly, sparingly and with a persisting view to the encouragement of parties settling their own differences in connection with the negotiation of property settlement provisions.

Here, the parties’ Separation Agreement had been entered with the assistance of Divorce Mediation Professionals (Lenard Marlow, J.D.). The parties only entered their agreement following at least 10 conferences, letters between the parties and the mediator, revisions, a written suggestion by the mediator to the wife that she consult with her own attorney to discuss changes to the agreement, and the valuation of the husband’s pension.


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mediation.jpgCommencing March 14, 2011, parties to a Nassau County divorce action may be required to participate in a mediation session under a program initiated by Justice Robert A. Ross, Supervising Judge of the Matrimonial Parts. After a preliminary conference, the judge assigned to the case will decide whether the case is suitable for mediation. The