Monday, November 10, 2008

Why Get a Lawyer? Reason 1033

A New York case gives another good example of why to get and keep a lawyer for a divorce. It also serves as an example of how not to behave as a party to a divorce

Corporate Legal Times reported the story in one paragraph:

A New York attorney is not obliged to pay $52,000 a year in maintenance to his ex-wife even though he acknowledged crossing out a cohabitation clause freeing him to stop the payments from a copy of the separation agreement, a state judge has ruled. The husband stated that he crossed out the clause more than a year after he and his wife signed the agreement, knowing that "the modification was absolutely unenforceable." The judge discounted the wife's testimony that the change was made at the initial signing.

Note the trial judge did not believe the wife. Lawyer-husband got lucky. The following from f/k/a blog's lawyer miscellany (and Miss Savage, too) adds to this point:

However, the 23-page opinion in A.K.H. v. B.H (N.Y. Supreme Court for Nassau County, Index #200306/07, October 28, 2008) convinced me that the Justice Jeffrey S. Brown ruled correctly — and that I should have remembered from my law practice to hear at least three sides of a domestic law controversy before coming to a conclusion. There are far too many facts and reasons to detail here. Primarily, Judge Brown found the husband’s testimony on many key issues to be far more credible than the wife’s. There was no basis for an equitable estoppell, because “The court finds that she did not suffer any damages and did not rely to her detriment due to the elimination of the cohabitation clause.” And:

“The issue of whether the plaintiff breached a fiduciary duty is not before this Court because defendant failed to plead a counterclaim to dismiss the complaint on the basis of overreaching. . . . Her testimony reveals that she, in fact, wants a divorce but also wants continued maintenance.”'s Attorney Husband Who Misled Wife About Contract Change Gets Benefit of Original Agreement has far more detail. Here is how the cohabitation clause came to be struck from the agreement:
Just before the closing, he told the court, his wife asked him to strike the cohabitation clause because she wanted her boyfriend to move in and help maintain the condo. According to the decision, Hirschhorn struck the clause and initialed it, knowing that "the modification was absolutely unenforceable."


In December 2005, Hirschhorn told his wife that according to the terms of their agreement, he could cut off her maintenance payments as she was living with her boyfriend. However, he offered to keep paying half of the maintenance. Hirschhorn objected, reminding him of the crossed-out clause. Despite telling his wife that the struck clause "did not matter because it did not comport with the law," Hirschhorn continued making the full payment "out of love and respect" for the couple's daughter, according to the decision.
That strikes me as being too cute and could have turned quite differently for the husband if the arguments (such as the one about husband having a fiduciary duty to wife) had been made by the wife.

And about the reason for needing a lawyer?
At a three-day trial this summer, Hirschhorn testified that toward the end of 2001, his wife told him she was discharging her attorney because "it was costing her a lot of money for legal fees." Hirschhorn continued negotiations with his wife, and the two reached an agreement on July 8, 2002.


In February 2007, Hirschhorn filed for divorce. His wife asked him whether she would need a lawyer. According to the decision, Hirschhorn replied that "he could not answer the question ... [but] he could not see why she would need an attorney."
I wonder if the case will go up on appeal.

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