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Wife’s Concealment of Terminal Cancer Did Not Warrant Rescission of Divorce Settlement Agreement

The Second Department determined the wife’s concealment of the condition of her health (terminal cancer) during the negotiation of a divorce did not constitute actionable fraud.  The husband sought to rescind the agreement after learning of his wife’s illness (after her death), alleging he would not have entered the agreement had he been aware of it:

While a party’s health is material to the equitable distribution of marital assets (Domestic Relations Law § 236[B][5][d][2]…), the plaintiff does not challenge the manner in which the parties agreed to distribute the marital assets … . Rather, the plaintiff only claims that he would not have agreed to settle with the wife at all had he known of her condition. Contrary to the plaintiff’s contention, the wife’s alleged misrepresentations or omissions concerning her health were not material to the plaintiff’s decision as to whether to enter into any settlement agreement at all with the wife and, thus, would not warrant the equitable remedy of rescission … . To hold otherwise would be to recognize, contrary to public policy favoring settlement and fair dealing …, that the plaintiff was entitled to a “fair” opportunity to stall in settling the action with the goal of retaining all of the marital assets upon the wife’s death. Equity is not served by permitting the plaintiff to rescind the separation agreement for lack of this opportunity.  Petrozza v Franzen, 2013 NY Slip Op 05739, 2nd Dept 8-28-13

 

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