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Consent to Divorce In Exchange for Payments Would Violate Public Policy

In the course of a lengthy decision dealing with several other issues, the Second Department explained why an in-court stipulation was properly vacated, noting that defendant-wife’s consent to the divorce in exchange for financial payments could not be consideration for the stipulated agreement because such an agreement would violate public policy:

To be enforceable, an open court stipulation must contain all of the material terms and evince a clear mutual accord between the parties (see CPLR 2104…). The 2011 on-the-record agreement was too incomplete and indefinite to be enforceable, and was merely a non-binding agreement to agree … . The parties disagreed whether the proposal included a waiver of maintenance and they did not finalize the details of the transfer of the 1999 Trust. Other material terms were never agreed upon, and the agreement was subject to the consummation of future conditions and additional agreements.

The agreement also lacked consideration … . Accepting defendant’s consent to the divorce in exchange for the financial payments would have been against public policy … . In any event, the parties unambiguously agreed that “whether we hammer out the agreement or not, the divorce will go forward uncontested.” There is no merit to defendant’s claim that her decision to avoid a public trial on fault grounds constituted consideration because it would have brought up embarrassing and difficult questions for plaintiff concerning his financial dealings. Cohen v Cohen, 2014 NY Slip Op 06157, 1st Dept 9-11-14

 

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