Thursday, December 24, 2009

News: Brazil Custody Case plus Madoff Victims' Divorce Agreement

Brazil Custody Case Appears Ended

American, David Goldman boarded a private plane bound for the U.S. with his son Sean after years of court battling. Sean Goldman was turned over to his father by his Brazilian step-father in a scene of public turmoil instead of at the Consulate as requested. See NY Times article

Madoff Victims' Divorce Agreement Upheld

In Simkin v. Blank, decided in New York County on December 22, 2009, a New York Supreme Court Judge held that the husband's attempt to set aside the parties' 2006 settlement agreement due to a mutual "mistake of fact" as to the existence or non-existence of the Madoff account and "unjust enrichment", did not pass muster. Importantly, the court found, "The complaint does not contend, however, that the account had no value, only that, under the circumstances it was "non-existent". In urging that the Amended Complaint fails to state a viable cause of action, defendnat contends without contradiction that on September 1, 2004, and later, on June 27, 2006 when the parties entered into their agreement, and in fact, for the several years thereafter that plaintiff maintained this investment, it could have been redeemed for cash, presumably significantly in excess of its 2004 value."

The court then left open the possibility of a valid claim if the proper allegations were set forth in the complaint holding, "In the absence of a claim that, on the date of the parties' agreement the Madoff account had no value, the complaint fails to set forth a cause of action, either for mutual mistake or for unjust enrichment, as a matter of law."

See NY Law Journal for decision

Tuesday, December 22, 2009

News: Latest On Brazil Custody Case

The Brazilian Supreme Court's Chief Judge lifted the stay which prevented Sean Goldman from returning to the U.S. in his father, David Goldman's custody. Further proceedings may, however, still result, including an appeal to Brazil's highest appellate court.

Thursday, December 17, 2009

News Update

Update: Brazil Supreme Court Stays Prior Custody Order in Goldman Case

A Brazilian Supreme Court Judge has stayed yesterday's order directing the return of David Goldman's 9 year old son, Sean to him within 48 hours. The child's step-father continues to petition to keep him in Brazil to permit the child to allegedly testify that he wants to stay. David Goldman had already flown to Brazil to pick up Sean when the ruling was issued. It is belived that a ruling on the issue will not be had until February since the court goes into recess on Friday. The child will remain in Brazil at least until a decision is made.


Brazil Court Awards Custody to American Father-- For Now

American David Goldman, after a custody battle raging over many years to recover his son from the husband of his late ex-wife, was finally awarded the return of his now 9 year old son, Sean. A panel of Brazilian federal appeals court judges ruled on December 16, 2009 that Sean, should be returned to David Goldman at the U.S. Consulate in Rio de Janeiro within 48 hours. Notwithstanding the ruling, an appeal is expected which may further delay the child's return.

District of Columbia Begins Approval of Same-Sex Marriage
By an 11-to-2 vote, the D.C. City Council passed a measure on December 15, 2009 legalizing same-sex marriage. Many expect the bill to be passed into law by spring and the Mayor has indicated he will sign the bill into law. As in Califonia and Maine, which had legalized same-sex marriage only to have it overturned by vote of the populace, opponents have already promised to overturn the bill by referendum or through Congress, which has a month to review it when signed into law.

Monday, December 14, 2009

News: No Extra Change for 50 Cent Ex

Citing to a case involving another prominent rapper, the Appellate Division in two decisions, determined that the ex-girlfriend of Curtis Jackson, better known as "50 Cent", was not entitled to even one cent more in child support or any counsel fees. Relying on Brim v Combs, a case in which Sean "P Diddy" Combs was sued for child support, the Appellate Division Second Department in Matter of Jackson v Tompkins, reiterated the principle that in high income cases, the court will look to the child's actual needs and the amount that is required for the child to live an appropriate lifestyle, rather than the wealth of one or both parties. Ms.Tompkins was seeking more money over and above the $6,700 in monthly child support ordered by the court as well as an award of counsel fees.

The decsions from September 15, 2009 may be found at: and

Monday, December 7, 2009


Get all of the Tiger Woods jokes out of your system. He has a mess on his hands for sure. It appears to get messier by the minute. It is really news which deserves to take up our (so it seems) every waking hour?? If one is to believe the reports, he has already amended his prenup to provide for more money now and more money later to his wife if she stays with him. Given, however, the generous helping of glamorous golfer girls being generated, his generosity may prove grimfully gratuitous. OK, not quite William Safire, but it will have to suffice.

If Mr. Woods has in fact amended the agreement and presumably it is done properly, he may very well have locked himself into a big pay day-- with his wife on her way out the door anyway in light of the additional alleged "revelations" of additional affairs. So what about the alleged amendment? Signed, (allegedly)with the expectation or hope that the wife will forgive his (one) indiscretion, by cashing a big check. After all, if it worked for Kobe...

Prenups are looked upon favorably in New York and are afforded great protection. A high burden remains upon the party seeking to set one aside. Courts like resolutions. While an "antenuptial", or prenuptial agreement may contain many of the elements of a separation or settlement agreement, it is, in many ways, a more complicated document. It may address estate rights, property rights, spousal support, custody and child support-with the latter three being subject to additional conditions of enforceability. (The court always maintains jurisdiction to address custody, parenting and child support provisions. Further, spousal support (what used to be called "alimony" and is now "maintenance") must not be "unconscionable". There is still though a quasi-fiduciary relationship between the betrothed to be. The court will look closely at the agreement if someone is challenging it at the time of a divorce and a proper showing is made that the agreement is suspect. In New York, there is now a three year statute of limitations to challenge the agreement which runs "essentially" from the time of commencement of a matrimonial action. The statute, Domestic Relations Law section 250, governs.

A whole host of issues are plentiful in the negotiation and preparation of a prenup and they are not always as simple as one might otherwise think. The goals remain to avoid future litigation in the event of a divorce, to protect the client in accordance with their desires, and not to get in the way of the wedding. That said, having a prenup is not always just for the wealthy or for people who have been divorced before. The idea, as I said, is to come to your own solution in the event of a matrimonial catastrophe. I tell clients its like having an insurance policy. In this case, it is to try and fashion some security beforehand in the event down the line, the marriage does not work out. You then put the document away in a dark place (literally-- and not the back of your mind-- hopefully that is not a dark place) and live your life in a happily married existence. (Yes, that is what I said-- "a happily married existence") Problems occur when a client comes to me the week of the wedding and say they want a prenup and have first told their intended that morning or if they don't want to disclose their financial information or if they want a completely one-sided agreement. Interestingly though, having it signed at the last minute or one party not having an attorney, does not make the agreement unenforceable, but it does raise issues and suspicions which must be overcome.

After inquiring as to the client’s desires and needs, full financial disclosure should be had. This helps eliminate someone being able to say they had no idea what was being given up or what the financial picture looked like. Both parties should have separate attorneys. Questions must be addressed: discuss the financial and life circumstances; are there children from a prior marriage they might want to protect; are there other estate concerns; are there obligations from a prior divorce; are they intending to have children; is one spouse going to leave the workforce for a period of time; do they want to condition distribution of property or support upon length of the marriage or establish complete waivers; do the parties have any property they already own jointly; is there an existing separate residence which one party will have exclusive occupancy of in the event of divorce; how do they want to deal with appreciation of separate property? There are often many other issues to be addressed as well.

The task of representing the client with regards to a prenuptial agreement is one which should be dealt with sensitively as well as professionally. A long happy marriage after all, is the goal. (Really, it is.) So for Tiger Woods, unless there is something really wrong with that alleged amendment, he (a) presumably has a valid agreement, (b) will have to shell out a lot more additional money than he had to before last week and (c) will have a hefty child support obligation if she leaves with custody. But, it will be a lot less then if there was no agreement and they will spend a lot less time in court battling over issues that they have already resolved. Who, after all, wants to spend time in court with lawyers, when you can be preserving your endorsement deals or discussing your new cheating spouse book on Oprah!

Note: Thanks to my friend Stu Cohen, for suggesting this topic since he felt one of my last blogs was "too technical" and "boring". I comment not though on his clear lack of ability to appreciate my prior scintillating posts. To paraphrase Ed Norton, "A pox on him and his ancestors!"

Wednesday, December 2, 2009

New York State Senate Votes Down Gay Marriage Bill

By a margin of 38-24, the New York State Senate just voted down the proposed same-sex marriage bill after debating the issue on the floor.