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Wife’s Application to Modify Separation Agreement to Her Benefit Is Dismissed

Father-with-son

Supreme Court Justice Frank Nervo sitting in a divorce part in New York County recently had before him a case where a wife brought an application to modify or set aside a separation agreement she had entered into with her husband. She wanted the court to rescind the portion of the separation agreement the parties had entered into which dealt with the transfer of the parties’ marital home. She claimed she was not able to carry out her financial obligations under the separation agreement. The reason for her inability to fulfill her obligations was she could not obtain financing needed to pay a distributive award to the husband. She argued in her pleadings that if she was unable to make the payment he did not have to transfer the marital residence to her.

She claimed the wording of the separation agreement was a mistake, and she was defrauded. The terms of the separation agreement were therefore impossible for her to carry out. Judge Nervo did not see it that way. He dismissed wife’s lawsuit. He found her allegations of a mutual mistake could not be proven. The only mistake was made by her. He also found there were no fraudulent misrepresentations. Judge Nervo ruled the wife’s claim that it was an impossibility for her to perform the terms of the separation agreement regarding the payment to the husband for the house were not proven. The husband’s application to dismiss her complaint was granted.

Attorney Elliot Schlissel

Elliot S. Schlissel and his associates are father’s rights attorneys representing fathers throughout the Metropolitan New York area in divorces and family court cases. His law firm has been helping fathers with legal issues involving child custody, child support and visitation problems for more than three decades.

15 Mile Radius Clause Found Valid and Enforceable

A child holding it's parents hand

In a case before Justice Richard Dollinger in Monroe County New York a father sought relief from the 15 mile radius clause that was in a separation agreement. The agreement stated the father needed to live within 15 miles of the mother’s residence as part of a parenting plan. The father brought an action requesting relief from the 15 mile provision. He did not argue that the agreement was unfair or inequitable. His argument was that he had a new girlfriend and she resided more than 15 miles from the mother’s residence. Judge Dollinger ruled this could not be considered an unanticipated situation. Dollinger went on to hold that the father’s new residence was his own choice. There was no evidence presented of extreme financial hardship related to this 15 mile radius clause.

No penalty Clause in the Agreement

The father argued that there was no penalty provision in this settlement agreement. He also argued there was no deadline for him to change his residence back to within the 15 mile radius. However Judge Dollinger ruled in the absence of a contractual deadline the court would impose a “reasonable time” deadline with regard to the father’s compliance with the terms of this agreement. He therefore gave the father three (3) months from the date their child would start kindergarten to comply with the 15 mile radius requirement. Judge Dollinger felt a three (3) month compliance period was a reasonable period of time for the father to become in compliance with the terms of this agreement. In the end Judge Dollinger refused to relieve father of his obligation to live within 15 miles of the mother’s residence.

Conclusion

Attorney Elliot Schlissel

Many settlement agreements and/or separation agreements have radius clauses. These clauses generally prevent the custodial parent from moving more than 15 to 25 miles from the former marital residence. Once these clauses are in an agreement it is difficult to get around them.