Ruling could stop wealthy New York couples from ‘shopping’ for divorce court judges
February 8, 2023
Author: SSL Partner
No more “home” court advantage!
A new legal ruling will likely stop wealthy New Yorkers from trying to duke out their high-stakes divorces in counties where their vacation homes are located in a bid to beat their spouses, legal experts told The Post.
Well-heeled clients often file for divorces in smaller jurisdictions such as Suffolk County in hopes of winning rulings from historically conservative judges — who are seen as more likely to side with the richer partner, according to attorney Peter Bronstein, who recently won a case that could put the kibosh on the practice.
Judges there tend to favor the bigger bread-winner because they usually have less experience with high net-worth cases, along with large spousal and child support awards, according to Bronstein and other matrimonial lawyers.
The so-called divorce court “forum shopping” is also used to “shock” and inconvenience the poorer partner by forcing them to trek to far away areas for the legal battle, said Bronstein.
“If the husband is flying out on his helicopter to Islip [court] with his lawyer, the wife has to go by Uber,” said Bronstein. “There is a perception here of putting the poorer spouse on her back foot and therefore perhaps you can negotiate or make that spouse more uncomfortable.”
But earlier this month, an appellate court ruled that a rich retired real estate developer, Mark Fisch, had to fight his divorce against former New Jersey Judge Rachel Davidson in Manhattan — rather than in Suffolk County — because their $4 million Southampton vacation home can’t be considered their residence.
Bronstein, a lawyer for Davidson, hailed the potentially influential decision — saying it thwarted Fisch’s alleged attempt to “choose a more favorable” court and put Davidson “in an awkward position of having to litigate far from home.”
He said Fisch tried to “discombobulate” and “shock” Davidson – his wife of 35 years, with whom he has three daughters — by filing for divorce in Suffolk.
The ruling creates “a degree of fairness” and “takes away the leverage” from the wealthier spouse, Bronstein said of the March 9 Appellate Division, Second Department decision.
Prominent New York matrimonial lawyer Bernard Clair — who represented Judith Nathan in her divorce from former Mayor Rudy Giuliani — told The Post that he agreed with the ruling and said local divorce lawyers have been waiting to see which way the case would go.
“We deal with it all the time, these attempts to get cases out of the city for nefarious purposes and this case says it’s not going to work,” said Clair.
“The perception is that judges are going to deal with people who are very wealthy more favorably because they are not going to be as sophisticated as New York [City] judges as to the value of businesses, the value of options, restricted stock, etc.”
After Fisch – a trustee and chairman for the Metropolitan Museum of Art – filed for the divorce in Suffolk County on Aug. 11, 2020, Davidson fought to move the case to Manhattan. She claimed that they primarily lived at a duplex condo at the Beresford off of Central Park, which housed their $177 million art collection.
Fisch contended that their Southampton home should be considered their residence. But Davidson said it’s not, and that she only began spending substantial time there during the COVD-19 pandemic with her pregnant daughter starting in March 2020.
The appellate court decision – which overturned a lower court’s ruling that sided with Fisch – found that the estranged couple weren’t Suffolk residents since their stays in the Southampton house “were only seasonal and temporary.”
“I do think it is a very big decision for matrimonial purposes and divorce litigation going forward,” Paul Talbert, another New York matrimonial attorney told The Post. “And I think it’s going to be a significant tool for many matrimonial lawyers to keep their divorces in the proper venue.”
Talbert, who primarily handles divorces for the wealthy, said that forum shopping is “a game that a lot of people play,” and it’s one that he’s had to fight in court “on several occasions.”
“You’ll often have a race to the courthouse to see who files first” — and in which county, Talbert said.
New York matrimonial lawyer Michael Stutman said he has used this type of legal maneuver in some of his cases.
“The judges in Manhattan historically were willing to place a higher value on the contribution of the spouse who is the non-monied spouse, the non-earning spouse,” Stutman explained.
But Stutman said that while Suffolk County judges used to be primarily conservative white men – and were therefore believed to be more favorable toward the richer spouse – “that’s not exactly the case anymore.
“The bench has gotten a lot more diversified,” he said.
Still, Stutman said even if the slightest advantage remains for the richer spouse in filing for divorce in Suffolk, this could mean the difference of millions of dollars in a divorce agreement.
“When you’ve got a couple of hundred million dollars, if you think you could move the needle by even two percent … That’s a lot of money. That may be worth going to the mat about,” Stutman said.
“In ultra-high net-worth cases, this takes a small tool out of the tool kit of the monied spouse,” Stutman said.
Fisch’s lawyer Nancy Chemtob declined to comment.
Article originally published by: The New York Post