A Case off The Beaten Path: Does French Law or New York Law Apply

I offer Court to decide whether French law fits NY divorce from Newsday more along the lines of an intellectual curiosity than something that will bear on Indiana family law .

"ALBANY, N.Y. - The marriage began with the Paris wedding between a scholarly linguist and a younger man who would one day do well in finance. It's concluding with courts sorting out whether French or New York law has the last word on who gets a Manhattan co-op, a Massachusetts country house and all the money earned during a 38-year marriage.

At the center of the divorce case is a contract signed in 1965 under the French Civil Code, and it's up to New York's Court of Appeals to decide whether it represents a prenuptial agreement. If not, the state's divorce law requires 'equitable distribution' of the couple's collective assets. There are about $6 million at stake."

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But the referee disagreed, saying the French agreement governed the economics of their marriage and likewise applied to the circumstances of their 2003 divorce.

Gregory Van Kipnis once told the referee he hadn't considered the contract a prenuptial agreement relevant to divorce, that they had kept assets in separate names to protect themselves from creditors. However, his attorney, Stuart Gartner, told the Court of Appeals judges that Van Kipnis, an American citizen, had forgotten what that contract said.

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The referee recommended awarding Claire Van Kipnis their jointly owned $1.8 million Manhattan co-op apartment, furnishings, $75,000 for repairs, $92,779 for attorneys' fees and $7,500 in monthly maintenance. Gregory Van Kipnis would get their $625,000 Massachusetts country house.

A trial court confirmed the referee's report. A midlevel appeals court, divided 4-1, agreed. The majority said the contract "unambiguously provides for separate ownership of property and extrinsic evidence should not have been considered to create an ambiguity or vary its terms."

The dissenting justice at the Appellate Division in Manhattan said there was "no ambiguity," and the couple's intentions were clear, that the French contract was never intended to define distribution of marital assets. Enforcing it "will be a windfall for the husband," inconsistent with their understanding, "or with the laws of this state that govern the equitable distribution of marital assets."

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