Bedrock Divorce Advisors

To read this article directly on the ForbesWomen and/or to leave a comment, please click on this link: http://blogs.forbes.com/jefflanders/2011/06/14/can-you-get-a-divorce-do-over/

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Once in awhile you paint a room, and then decide later that you just can’t stand the color. That’s not a big problem because you can always repaint.

Occasionally at breakfast, I’ll burn a piece of toast. Obviously, that’s not a big deal, either, because I simply put another slice of bread in the toaster.

But, as you might expect, in divorce, it’s not as easy to “try again.” In divorce, no one gets a do-over.

Of course, some people have a hard time accepting the kind of finality that comes along with a signed settlement.

For proof check out the current brouhaha surrounding the divorce between Steven Simkin and Laura Blank.

By all accounts, the Simkin-Blank case was more or less standard-fare when it was settled back in 2006 –despite the fact that he is a partner at one of the country’s most prominent and powerful law firms and the division of property involved millions of dollars of assets. Like most non-celebrity divorces, it’s likely that this one would have stayed out of the limelight, except for one thing:

Steven Simkin is now requesting a do-over.

You see, after the divorce, Simkin continued to keep a sizeable amount of money invested with Bernard Madoff. By contrast, Blank was no longer interested in keeping any of her money with Madoff, and she opted instead to receive her divorce settlement proceeds in cash (some $6.6 million).

Although Simkin continued to invest with Madoff after the divorce was finalized, now that the Ponzi scheme has been exposed, he’s arguing that he is the victim of fraud. Reportedly, Simkin’s assets have diminished considerably and as a result, he has filed court papers to revise the terms of his divorce settlement.

The cornerstone of Simkin’s suit is a legal term called “mutual mistake,” by which an error of both parties to a contract leads to the identical misconception concerning a past or existing fact. But, is this contract law principle enough to cancel the terms of a divorce settlement?

I don’t think so. Divorces are settled every day based on an estimation of asset value. Every day, asset evaluations are completed.  Terms are set. Compromises are made. Divisions are agreed to. Divorces are finalized.

Granted, in certain cases alimony and child support can be modified (either up or down) when due to a substantial change in financial circumstances. However, changing a property settlement agreement and the division of assets is next to impossible.

Not everyone sees it the way I do.  At first, a trial judge dismissed Simkin’s suit. However, that decision was reversed by a New York Appellate Court that ruled 3-2 in favor of Simkin.

As you undoubtedly could have predicted, the case is back in the courts, again, and many now see it as a landmark test for contract law. If the Simkin-Blank settlement can be re-opened, why can’t others? Every divorce settlement involves the evaluation of current assets, and there’s an implicit understanding that the value of certain assets may change over time. Can settlements be revised whenever one party suffers a loss? What happens when one party benefits from a significant gain?

Stay tuned. This case has intrigued matrimonial lawyers and other divorce professionals for months, and it looks as though the debate is going to continue for some time.

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Jeffrey A. Landers, CDFA™ is a Divorce Financial Strategist™ and the founder of Bedrock Divorce Advisors, LLC (http://www.BedrockDivorce.com), a divorce financial strategy firm that exclusively works with women, who are going through, or might be going through, a financially complicated divorce. He also advises women business owners on what steps they can take now to “divorce-proof” their business in the event of a future divorce. He can be reached at Landers@BedrockDivorce.com.

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