L.V., Plaintiff, v. D.V., Defendant (2026)

This Decision and Order pertains to the following motions arising out of this matrimonial action: (i) Plaintiff's Order to Show Cause signed by this Court on April 21, 2026, (hereinafter referred to as "Motion Sequence No. 1"), seeking to vacate the Stipulation of Settlement dated November 24, 2025; (ii) Plaintiff's Order to Show Cause signed by this Court on June 5, 2026, (hereinafter referred to as "Motion Sequence No. 2"), seeking to vacate the dismissal of Motion Sequence No. 1, restore this motion to the Court's calendar, stay the issuance of the Judgment of Divorce pending determination of the motion, and such other and further relief as this Court deems just and proper; and (iii) Defendant's Cross-Motion filed on July 17, 2026, (hereinafter referred to as "Motion Sequence No. 3"), seeking dismissal of Motion Sequence No. 1 on the merits and counsel fees in the amount of $20,878.23. The following papers were considered in deciding these motions:

PAPERS NYSCEF DOC. NO.

Plaintiff's Order to Show Cause (MS #1) 12, 18

Plaintiff's Affirmation in Support (MS #1) 13

Plaintiff's Attorney Affirmation in Support (MS #1) 14

Plaintiff's Exhibits, 1-2, in Support (MS #1) 15-16

Plaintiff's Order to Show Cause (MS #2) 20, 23

Plaintiff's Attorney Affirmation in Support (MS #2) 21

Plaintiff's Exhibit, 1, in Support (MS #2) 22

Defendant's Notice of Cross-Motion 31

Defendant's Affirmation in Support and Opposition 32

Defendant's Attorney Affirmation in Support and Opposition 33

Defendant's Memorandum of Law 34

Defendant's Exhibits, A-G, in Support and Opposition 35-41

Plaintiff's Affirmation in Reply 42

Plaintiff's Exhibits, 1-5, in Reply 43-47

Plaintiff's Attorney Affirmation in Reply 48

So-Ordered Transcript of May 27, 2026 Proceedings 28

Order Regarding Attorney's Fees 29

Upon the foregoing papers, the applications are decided as follows:

Relevant Procedural History

Plaintiff commenced this action for divorce by filing a Summons and Complaint on January 16, 2024.¹ Defendant filed an Answer on March 12, 2024.² By Interim Stipulation, (hereinafter "Interim Stipulation"), dated February 13, 2025, the parties agreed that Plaintiff would withdraw $320,000 from his Charles Schwab IRA Account ending xxxx for, inter alia, the following purposes: (i) paying Plaintiff's "designated debts," consisting of credit card and loan balances, and the parties' son's car, totaling $218,207; and (ii) paying Defendant's "designated debts," consisting of credit card debts totaling $25,000.³ In or around September 2024, Plaintiff's account ending xxxx had a balance of $483,000 (pre-withdrawal) and Defendant's Charles Schwab IRA account had a balance of $189,000. The Parties agreed that their accountant would determine their respective obligations toward the penalty and tax liabilities on withdrawals of $263,000 by Plaintiff and $25,000 by Defendant ($288,800). The parties further agreed that, upon entry of their Judgment of Divorce, via Qualified Domestic Relations Order, they would allocate the remainder of Plaintiff's account ending xxxx, with a balance of $195,000 ($483,000 less $288,000), 81% to Defendant, and 19% to Plaintiff. Defendant would transfer 19% of her account balance of $189,000 to Plaintiff, both subject to proportionate allocation of gains and losses at that date.⁴

The Parties stated that they freely and voluntarily entered into the Interim Stipulation with a clear understanding of its provisions and stated that the terms were fair and reasonable on the basis of having sought the advice of independent counsel of their choosing. The Parties agreed that the Interim Stipulation was a valid and enforceable agreement pursuant to DRL § 236(B)(3) and that it would be incorporated but not merged into the final Judgment of Divorce.

By Stipulation of Settlement dated November 24, 2025, (hereinafter "Stipulation of Settlement"), the Parties settled all remaining rights and obligations of the marriage and incorporated the Interim Stipulation therein.⁵ Pertinent to the current applications is the provision on maintenance in the Stipulation of Settlement. The Parties chose to opt-out of the post-divorce maintenance guidelines of $30,120.33 per year, or $2,510.33 per month, which was calculated based on the Parties' "income" as defined by DRL § 240.⁶ Instead, the Parties agreed that Plaintiff would provide Defendant spousal support in the amount of $3,000.00 per month for a total of 12.5 years, or 150 consecutive months, subject to certain conditions of termination as set forth in the agreement.⁷ In paragraph 7.8 of the Stipulation of Settlement, the Parties confirmed that, based on the representation of their respective incomes, on which they both relied (paragraph 7.6), they accepted this deviation from the presumptive amount of guideline maintenance as being "fair and reasonable at the time of the making of [the Stipulation of Settlement] and each party agree[d] never to assert to the contrary." By this time, the Parties had conferred with their accountant, and based on joint tax filings for 2024, the Parties agreed to a division of tax penalties as initially discussed in their Interim Stipulation.⁸ While reference to the incorporation of the Interim Stipulation was itself sufficient, the parties explicitly set forth at Article XI the pertinent provisions of the Interim Stipulation, using May 2025 account balances of their retirement accounts.

In Article XIV of the Stipulation of Settlement, the Parties acknowledged their Stipulation was achieved with the benefit of "competent legal representation and honest negotiations."⁹ In Article XV, the Parties further acknowledged that "they have exchanged Net Worth Statements and all other relevant forms of financial disclosure and that they are each fully aware of the other's finances."¹⁰ A separate Allocution section was signed and acknowledged by each party. Except as provided in the Article on Default (Article XXV), the Parties set forth their final agreement that Plaintiff would pay Defendant $18,000.00 towards her legal fees. The Parties would otherwise pay their own legal fees.

On April 20, 2026, Plaintiff brought Motion Sequence No. 1, seeking to vacate the Parties' Stipulation of Settlement dated November 24, 2025, which incorporated the Interim Agreement. On May 27, 2026, Defendant and counsel appeared on the return date of that application. Plaintiff and counsel failed to appear. The Court dismissed Motion Sequence No. 1 without prejudice and awarded Defendant $1,500.00 in counsel fees.¹¹

By Order to Show Cause, filed on June 3, 2026, Plaintiff brought Motion Sequence No. 2 seeking to vacate the dismissal of Motion Sequence No. 1, restore it to the calendar, and to stay the signing and entry of the proposed Judgment of Divorce pending decision on the merits of Plaintiff's Motion Sequence No. 1.

The Parties' Contentions

Plaintiff's Arguments: In his application to restore Motion Sequence No. 1, Plaintiff's counsel argues that the Court has discretion to excuse default due to law office failure. He argues such excuse may be warranted in the interests of justice when the failure is not willful or part of a pattern of neglect and where the circumstances presented are supported by a detailed and credible explanation. Moreover, since this is Plaintiff's application and he has pursued his remedies immediately after the default, it is clear there is no intent to abandon the litigation. Counsel submits there is a strong public policy to restore matters to the calendar with an eye toward resolving disputes on the merits, rather than dismissing applications on procedural default. He avers this is especially the case where the procedural default was based on an isolated error, and no prejudice results to the opposing party from restoring the matter. Plaintiff's counsel argues that his client should be able to pursue the merits of his application because, if the Parties' agreement as written were enforced, Defendant would receive approximately $293,000 in retirement assets while Plaintiff would be left with $69,000. Further, enforcement of this agreement would obligate Plaintiff to pay a total of $450,000 in maintenance, a financial burden that would extend well into his retirement years.

In Motion Sequence No. 1, Plaintiff had argued that he was given an impression by his former counsel during the settlement negotiations that there was no meaningful alternative but to accept an uneven distribution of his retirement account after depleting it to pay marital debts. He also claimed that he had concerns about the accuracy and completeness of the financial records exchanged, but he was assured that this did not matter in terms of his maintenance obligations. Plaintiff notes that under the Parties' Interim Stipulation he was required to withdraw most of one retirement account to pay marital debts, plus taxes and penalties. He reports being advised that, based on the Parties' respective incomes, Defendant would still be entitled to over eighty (80%) percent of the remainder of this account. He questioned why he was left with $69,000.00 in this retirement account, while Defendant received $293,000.00 in hers. He also claims to have inquired about being authorized to reduce or terminate his maintenance obligations as he entered retirement but was advised that there was no mechanism to do so.

Accordingly, Plaintiff sought the Court's review and possible vacatur of the Stipulation of Settlement because he believed that its implementation would provide an inequitable result for him. Plaintiff's counsel argued the Stipulation of Settlement, and/or the two problematic provisions therein, was potentially the product of unconscionable and overreaching conduct, which overwhelmingly favors Defendant, and sought for the agreement to be set aside.

Defendant's Arguments: Defendant cross-moves under Motion Sequence No. 3, for an order denying Motion Sequence No. 1 on the merits and seeks counsel fees to cover the costs of her cross-motion in the amount of $20,878.73. Notwithstanding the relief sought in Motion Sequence No. 3, Defendant states in her Affirmation that she does not oppose Plaintiff proceeding with his application to vacate the Parties' Stipulation of Settlement under Motion Sequence No. 1 provided her application for counsel fees is considered.¹²

Defendant argues that throughout their thirty-one (31) year marriage, Plaintiff was the primary breadwinner while she was almost fully dedicated to raising the Parties' two children. During the marriage, Plaintiff's career as a cloud computing and infrastructure engineer continued an upward trajectory, with employer-sponsored health insurance, retirement benefits, and the ability to accumulate substantial assets. On the other hand, for twenty (20) years, Defendant could not use her master's degree in education to its potential because she never received her teaching certification and never taught full-time.

From 2001 through 2009, Defendant asserts she was a full-time stay-at-home mother to the Parties' two children. Thereafter, through 2020, she only worked part-time, earning between a few thousand dollars to $15,000 per year, and remained primarily responsible for their children's daily care. She submits that Plaintiff is presently employed as the head of Infrastructure and Cloud Engineering for an online brokerage and trading platform, earning approximately $200,000.00 per year, with bonuses, health insurance, and retirement benefits. Since the Parties' separation, Plaintiff has opened and funded a new retirement account. Defendant is presently employed as an infant child-care worker, earning approximately $66,000 per year, working full-time with substantial overtime, but she does not receive employer-sponsored health insurance or retirement benefits. Defendant states that the durational advisory guidelines provide a duration of maintenance between thirty-five (35%) percent and fifty (50%) percent of the length of the marriage. The parties compromised at twelve and a half (12.5) years for a thirty-one (31) year marriage.

Contrary to Plaintiff's contentions of an agreement borne out of haste and pressure, Defendant claims that the Stipulation of Settlement was the product of extensive negotiation spanning almost two (2) years. She states that they participated in at least three settlement conferences, exchanged multiple drafts, and countless emails and phone calls, all while the Parties were represented by competent counsel. The Stipulation of Settlement signed in November 2025 was a comprehensive and final settlement of the Parties' financial issues, which incorporated the Interim Stipulation made nine (9) months prior in February 2025. Defendant alleges that Plaintiff never claimed to be pressured or coerced to enter into either of these agreements.

Defendant claims that neither of the two major issues raised in Plaintiff's application to set aside the Stipulation of Settlement were negotiated "in isolation."¹³ She asserts that the amount and duration of maintenance was extensively negotiated, and Plaintiff cannot now claim this provision is unfair merely because it does not provide for a reduction or termination of payments upon his retirement. Maintenance as negotiated was based on the Parties' long-term marriage, their respective earning capacities, abilities to accumulate assets, Defendant's current financial needs, her limited retirement, and the fact that she will assume the cost of her own health benefits when the divorce is final. Contrary to his claims, Defendant contends she never withheld or misrepresented her finances from Plaintiff. Indeed, the Parties filed joint tax returns through 2024, and she presented him with her pay stub in June 2025, as requested.

Moreover, Defendant states that the Interim Stipulation dated February 13, 2025, memorialized Plaintiff's own proposal in the Spring of 2024 to satisfy significant debt, primarily in his name, from his retirement. Plaintiff initiated the withdrawal of these funds from his retirement account in December 2024, before the Parties had even signed the Interim Stipulation. Considering the Parties' respective settlement of their debts, Plaintiff's being approximately $218,207.00 and Defendant's being approximately $25,000.00, the Parties negotiated the allocation of the remainder of Plaintiff's account accordingly. Nine (9) months later, the Interim Stipulation was reaffirmed and incorporated into the Stipulation of Settlement.

Defendant also argues that Plaintiff ratified the Parties' agreements long before filing Motion Sequence No. 1 by accepting benefits from their agreements, such as sharing the proceeds from the sale of the marital residence. Despite accepting these benefits, he now refuses to acknowledge the negotiated obligations as they pertain to him. She contends that Plaintiff signed a sworn allocution of the Stipulation of Settlement, which incorporated and separately reiterated the Interim Stipulation, so Plaintiff cannot now allege it is a bad bargain. For these reasons, she requests that her counsel fees be granted and Plaintiff's application to vacate the Parties' Stipulation of Settlement be denied.

Defendant's Counsel argues that barring proof of fraud, duress, overreaching, or unconscionability, stipulations of settlement are strongly favored in New York and are not lightly set aside. He likewise asserts that Plaintiff cannot now claim that he was the victim of an unconscionable bargain, because the Stipulation of Settlement is not an agreement which "no person in his or her senses and not under delusion would make on the one hand, and no honest and fair person would accept on the other, the inequality being so strong and manifest as to shock the conscience and confound the judgment of any person of common sense ."¹⁴ Defendant also argues that it is well settled in New York that a party cannot later realize his or her "improvidence" and fight to vacate what is now deemed a "poor bargain."¹⁵

In summation, Defendant argues that Plaintiff actively participated in extensive, arms-length, informed, and meaningful negotiations for almost two (2) years with the assistance of independent counsel, as set forth in his allocution. The resulting agreement was a fair financial settlement, which deliberately considered the duration of the marriage, the benefits each party gained, and the disparity in the Parties' respective finances. This agreement also ratified the Parties' Interim Stipulation which originated in Plaintiff's desire to pay off significant debts in his own name. Plaintiff's allocution, contrary to his current arguments, states that his entry into the Stipulation of Settlement was neither coerced nor influenced by any other person, and that he understood the legal effects of signing the agreement. Plaintiff also swore the Stipulation of Settlement was the result of consultation and assistance from his chosen counsel for the duration of the negotiations, with whom Plaintiff was "satisfied" contemporaneous with his signature. Nine (9) months separated the Parties' Interim Stipulation and Stipulation of Settlement. His agreement to allocate the Parties' retirement accounts 81%/19% in favor of Defendant was twice agreed, and the allocation was repeated in the final agreement in addition to incorporation language. Likewise, Defendant argues, the maintenance provisions, the amount and duration of which were deliberately negotiated in consideration of the guidelines, do not support Plaintiff's claim of unconscionability.

Plaintiff's Arguments in Reply: In reply, Plaintiff reiterates his request to set aside the Stipulation of Settlement. Plaintiff requests, for the first time, reformation or rescission of the challenged provisions as alternative relief if the Court decides not to set aside the Stipulation of Settlement. This, he contends, would create a more equitable allocation of the Parties' financial obligations and resources than the Stipulation of Settlement. Plaintiff does not dispute the length, or depth of the Parties' negotiations or that they both proceeded with the assistance of independent counsel when drafting their Interim Stipulation and Stipulation of Settlement. He does not dispute that stipulations of settlement are not lightly set aside. He also does not dispute that he signed multiple acknowledgments and an allocution of his voluntariness to sign without undue influence or coercion. He does not believe, however, that any of these factors should be dispositive.

Plaintiff takes issue with the fairness of maintaining the two challenged provisions in the Stipulation of Settlement and allowing their incorporation into the pending Judgment of Divorce. In Plaintiff's view, these two provisions, i.e. allocation of retirement assets and maintenance, taken together, would produce an inequitable economic result for him. He points out that the disproportionate depletion of his retirement accounts should be reviewed against the Stipulation of Settlement's failure to provide for reduction of the maintenance obligation upon Plaintiff's retirement. Plaintiff emphasizes that the significant debts he paid solely from his retirement accounts were mostly marital in nature despite being held in his name. The debts consisted of, among other things, their son's college tuition, household maintenance/repairs, and healthcare expenses. Only after the debts and significant taxes/penalties depleted Plaintiff's retirement account, did the parties negotiate an 81%/19% division of the remaining accounts. He argues that the prospective 81%/19% division of the Parties' remaining retirement accounts should be reviewed in light of this one-sided depletion. Moreover, while lacking the cushion of his retirement assets, Plaintiff further obligated himself to one hundred and fifty (150) months of consecutive maintenance payments which would continue without reduction through his retirement, but which were based on his present income.¹⁶ He attaches his Social Security statement as purported proof of his potential monthly retirement income.

Plaintiff argues that Defendant's financial circumstances, including her employment, are not so much a product of her earning capacity, but of her personal choices. Plaintiff points out that Defendant has an M.S. in Secondary Education and worked for years as a substitute teacher in the xxxxx xxxxx School District. He alleges that Defendant continues to be fully qualified and eligible to continue this level of employment instead of hourly infant-care work with no employer-sponsored benefits. He further argues that the disparity between what Defendant could earn and what she chooses to earn is not a justification for seeking to fee-shift counsel fees to Plaintiff. Finally, he seeks denial of Defendant's cross-motion in its entirety, and calls Defendant's application for counsel fees premature until resolution of the merits of his application, which result may bear upon the basis of her application.

To correct what he deems the inequitable allocation of the retirement accounts, counsel for Plaintiff submits that the Court may treat the marital debt and related tax consequences as charges against the combined marital retirement estate before division. Likewise, Plaintiff argues that the Court may adjust the Parties' maintenance provision to account for Plaintiff's foreseeable transition from employment income to retirement income during the maintenance period.

Analysis/Discussion

Defendant has stated she does not oppose this Court's reinstatement of Motion Sequence No. 1 to the calendar, and the Court rendering a decision concerning a possible vacatur of the Stipulation of Settlement on the merits, if her counsel fee application is considered. Based on this, the Court grants Plaintiff's Motion Sequence No. 2 to the extent that Motion Sequence No. 1 is restored to the calendar and a decision will be rendered on the merits herein.

It is well settled in New York that "[a]n agreement between spouses or prospective spouses which is fair on its face will be enforced according to its terms unless there is proof of fraud, duress, overreaching, or unconscionability." Hof v. Hof, 131 AD3d 579, 579—80 (2d Dept. 2015). "An unconscionable bargain is one which no person in his or her senses and not under delusion would make on the one hand, and no honest and fair person would accept on the other, the inequality being so strong and manifest as to shock the conscience and confound the judgment of any person of common sense." McEvoy v. McEvoy, 219 AD3d 1513, 1514-15 (2d Dept. 2023) (quoting Morad v. Morad, 27 AD3d 626, 627 (2d Dept. 2006)). "[A]n agreement will not be overturned merely because it was improvident, not the most advantageous to the dissatisfied party, or because a party had a change of heart." Stewart v. Christina Trust, 230 AD3d 1365, 1366 (2d Dept. 2024) (quoting Osipova v. Silverberg, 200 AD3d 993, 993 (2d Dept. 2021); see also Poirier v. Demasi, 201 AD3d 977, 979 (2d Dept. 2022).

While Plaintiff asks this Court to consider that the Stipulation of Settlement might have been a product of "overreaching,"¹⁷ he did not make any factual claims in his moving papers for Motion Sequence No. 1 to support the assertion that there was fraud, duress, or overreaching. When a claim of overreaching is made, "relief will be granted if the settlement is manifestly unfair to a spouse because of the other's overreaching in its execution." Heinemann v. Heinemann, 189 AD3d 1553, 1555 (2d Dept. 2020) (emphasis added) (quoting Jon. v. Jon, 123, AD3d 979, 980 (2d Dept. 2014)). The only substantial allegations in Plaintiff's moving papers are against the legal advice allegedly provided to him by his previous counsel. Plaintiff has not proven concealment of facts, misrepresentation, cunning, cheating, sharp practice, or some other form of deception by Defendant in the making of any of the Parties' agreements. Accordingly, Plaintiff has failed to prove the absence of meaningful choice on his part. Accordingly, Plaintiff failed to show that there was fraud, duress, or overreaching.

Plaintiff also requests that the Stipulation of Settlement be vacated on the grounds of unconscionability. Plaintiff, as the party seeking to vacate the Stipulation of Settlement, has the burden of showing that its terms were unconscionable. See Karen E. v. Yoram E., 144 AD3d 1081, 1081 (2d Dept. 2016); O'Hanlon v. O'Hanlon, 114 AD3d 915, 916 (2d Dept. 2014); Campione v. Alberti, 98 AD3d 706, 706-707 (2d Dept. 2012); Cervera v. Bressler, 85 AD3d 839, 841 (2d Dept. 2011); Sweeney v. Sweeney, 71 AD3d 989, 992 (2d Dept 2010); Rubin v. Rubin, 33 AD3d 983, 985 (2d Dept. 2006); Chambers v. McIntyre, 5 AD3d 344, 345 (2d Dept. 2004). Plaintiff has failed to meet this burden.

This was a marriage of long-duration with emancipated children. While Plaintiff advanced in his career with corresponding income growth and wealth accumulation, Defendant did not advance her career, despite obtaining a master's degree. Defendant's contribution to the Parties' economic partnership came principally from raising the Parties' children full-time for virtually two decades. At commencement of this action, the Parties' debts, without regard to how such debt was titled, centered around their own expenses, the children's college expenses, and household bills. Based on the Parties' ages, health, respective finances, and current and future earning capacities, the Court does not find it inappropriate or unusual that the Parties stipulated to withdraw monies necessary to pay these debts from the larger of the Parties' retirement accounts. That the Parties then chose to allocate their retirement accounts using Plaintiff's post-withdrawal account balance does not appear to be unconscionable, or the product of coercion, overreaching, or even a failure of the parties' understanding of the financial impact of their agreement as enforced. Twice, the Parties set forth a table that showed the chosen manner of equalizing and reallocating their retirement accounts. Twice, the Parties agreed to divide their assets this way. This arrangement plus the tax consequences/penalties associated therewith should not have come as a surprise to either party.

The parties then negotiated post-divorce maintenance and, in so doing, contemplated the factors set forth at DRL § 236[B][6][e][1]. After calculating guideline maintenance as being $30,120.33 per year, or $2,510.03 per month, the Parties agreed to deviate upward to $3,000.00 per month, or $36,000.00 per year. The duration of maintenance, as set forth in the guidelines for a marriage of twenty (20) years or more, is between thirty-five (35%) percent to fifty (50%) percent of the duration of the marriage. In this matter, the length of the marriage was thirty-one (31) years and four (4) months, or 376 months.¹⁸ 35% of the length of the marriage is approximately 132 months, or eleven (11) years. 50% of the length of the marriage is approximately 188 months, or fifteen (15) years and eight (8) months. The parties settled at twelve and a half (12.5) years for the duration of maintenance, which was approximately forty (40%) percent of the marriage duration. These terms do not appear to be unfair or the product of overreaching.

Both parties were represented continuously by independent counsel of their choosing. While Plaintiff argues that the allocation of his post-withdrawal retirement account and his agreed upon maintenance obligations would be inequitable in their future application, there is no indicia that the terms of the Stipulation of Settlement were so manifestly unfair as to shock the conscience and confound the judgment of any person of common sense. See Forman v. Forman, 211 AD3d 698, 700 (2d Dept. 2022). The time for parties to challenge each other's representations is prior to signing an agreement. The time to question their own understanding of their rights and obligations as set forth in a written agreement is prior to signing an agreement. Plaintiff had ample opportunity in the twenty-one-month period of negotiations to seek the advice of other counsel if he was not satisfied with his own attorney's advice. He asked for and received proof of Defendant's income, and the Parties represented that they exchanged their finances to the other's satisfaction at the time of the Stipulation of Settlement. Plaintiff did not allege that he was victim of high pressure or deceptive tactics, or inequality of bargaining power or that there was an imbalance in acumen or understanding which favored Defendant. A hearing on this matter would only be warranted if sufficient facts were alleged or triable issue of fact was raised in the papers. See Karen E. v. Yoram, 144 AD3d 1081, 1082 (2d Dept. 2015). Based on the record, neither overreaching nor unconscionability have been shown in either the execution or substance of the Stipulation of Settlement.

If anything, Plaintiff appears to be arguing unilateral mistake because he does not allege that the Parties intended different bargained-for terms. For the first time on reply, Plaintiff seeks the remedy of either rescission or reformation of the challenged provisions of the final Stipulation of Settlement. The Court declines to entertain arguments which are raised for the first time in Plaintiff's reply papers. See Waldorf v. Maher, 221 AD3d 1052, 1052 (2d Dept. 2023). Moreover, the doctrines of rescission and reformation are not appropriate in cases of unilateral mistake. "Reformation is not granted for the purpose of alleviating a hard or oppressive bargain, but rather to restate the intended terms of an agreement when the writing that memorializes that agreement is at variance with the intent of both parties." Backer Mgt. Corp. v. Acme Quilting Co., 46 NY2d 211, 219 (1978). Rescission, on the other hand, is usually only applicable where, because of fraud, misrepresentation, or mistake, "there is an absence of the requisite 'meeting of the minds' to the contract." Brauer v. Central Trust Co., 77 AD2d 239, 243 (4th Dept. 1980); see also Surlak v. Surlak, 95 AD2d 371, 380—81 (2d Dept. 1983).

Plaintiff's claimed misunderstanding of the law is not a valid basis for either rescission or reformation. Plaintiff has not made a case for fraudulent inducement to a contract, or any other form of misrepresentation, which resulted in his unilateral mistake. He has also failed to allege that this agreement is the product of mutual mistake. As is clearly stated in the separate allocutions of the Parties, each entered into the Stipulation of Settlement after "mature and careful deliberation and after consultation with counsel." Each party understood the legal effects of the agreement, and still entered into it voluntarily and of their own "free act and deed." The agreement was not a product of collusion, third-party influence or drugs, duress or coercion and the parties expressed they were "satisfied" after having "thoroughly consulted" with and received advice of independent counsel at the time of execution.

In summation, the Parties unequal division of retirement accounts and agreement of post-divorce maintenance do not "shock the conscience" even when such terms are considered together. Defendant was a stay-at-home parent and spouse throughout the marriage, and Plaintiff's earning capacity far exceeds Defendant's. There is no showing that Defendant will end up destitute. Instead, Defendant merely alleges that equitable division was not equal and that he will have to pay maintenance until he is seventy-two. While the Stipulation of Settlement might be disadvantageous to Plaintiff, it does not shock the Court's conscience to render the Parties' Stipulation of Settlement unconscionable. Accordingly, Motion Sequence No. 1 is denied in its entirety.

Defendant's Request for Attorneys' Fees: Finally, Defendant seeks counsel fees pursuant to DRL §§ 237 and 238. While Defendant argues that DRL § 238 allows the Court to "consider not only the parties' financial circumstances but also the relative merits of their positions[,]"¹⁹ DRL § 238 is inapplicable here. DRL § 238 applies to, inter alia, proceedings to "enforce or modify any provision of a judgment or order entered in an action for divorce ." Here, the Parties' Stipulation of Settlement was not incorporated into any Judgment of Divorce, and it has not been so-ordered by the Court. Accordingly, DRL § 238 is inapplicable here.

Under DRL § 237(a) "the court may direct either spouse to pay counsel fees and fees and expenses of experts directly to the attorney of the other spouse to enable the other party to carry on or defend the action or proceeding as, in the court's discretion, justice requires, having regard to the circumstances of the case and of the respective parties." NY Dom. Rel. Law § 237(a). DRL § 237(a) also states that there is "a rebuttable presumption that counsel fees shall be awarded to the less monied spouse." "In a matrimonial action, an award of an attorney's fee should be based, inter alia, on the relative financial circumstances of the parties and the relative merit of their positions." Finnan v. Finnan, 95 AD3d 821, 822 (2d Dept. 2012) (quoting Ciociano v. Ciocino, 54 AD3d 797, 797 (2d Dept. 2008)). An "award of counsel fees pursuant to Domestic Relations Law § 237(a) is a matter within the sound discretion of the trial court, and the issue is controlled by the equities and circumstances of each particular case." Kaufman v. Kaufman, 131 AD3d 939, 944 (2d Dept. 2015) (quoting Prichep v. Prichep, 52 AD3d 61, 64 [2d Dept. 2008]).

While the Stipulation of Settlement, and the Parties' respective submissions, show that Plaintiff was the monied spouse throughout the marriage, Defendant did not file any documentation regarding her current income and has not filed a Statement of Net Worth in these proceedings. Motions seeking counsel fees pursuant to DRL § 237(a) "shall [not] be heard unless the moving papers include a statement of net worth ." 22 NYCRR § 202.16(k)(2). Accordingly, Defendant's request for attorneys' fees is hereby denied.

Since the outstanding motions are being decided herein, the Court will now consider the uncontested papers and the proposed Judgment of Divorce. After reviewing the proposed Judgment of Divorce and supporting documents, Plaintiff's Affirmation is missing from the submission. Plaintiff shall file his Affirmation on or before the closing of business on October 6, 2026, or in-person appearances of all parties and counsel shall be required before this Court at 9:00 a.m. on Wednesday, October 7, 2026.

Based on the foregoing, it is

ORDERED that Plaintiff's Motion Sequence No. 2 is granted to the extent that Motion Sequence No. 1 is restored to the calendar and a decision regarding Motion Sequence No. 1 is rendered herein; and it is further

ORDERED that Plaintiff's Motion Sequence No. 1 is denied in its entirety; and it is further

ORDERED that Defendant's Motion Sequence No. 3 is granted to the extent that Motion Sequence No. 1 is denied, however, Defendant's request for attorneys' fees in Motion Sequence No. 3 is hereby denied; and it is further

ORDERED that Plaintiff shall file an Affirmation of Plaintiff in support of the Judgment of Divorce on or before the close of business on October 6, 2026; and it is further

ORDERED that, in the event Plaintiff fails to abide by the Court's directive herein, counsel and parties shall appear in person before the Hon. Keri A. Fiore, J.S.C., at 111 Dr, Martin Luther King, Jr. Blvd., Courtroom 1000, White Plains, New York at 9:00 a.m. on Wednesday, October 7, 2026.

This constitutes the Decision and Order of the Court.

Dated: September 25, 2026

White Plains, New York

HON. KERI A. FIORE, J.S.C.

FOOTNOTES

1.   NYSCEF Doc No. 1.

2.   NYSCEF Doc No. 3.

3.   NYSCEF Doc No. 16 at page 2.

4.   As more fully set forth in the Interim Agreement at paragraph 8, the Parties set forth the method of allocating their respective shares of the others' retirement by debiting the parties' share of the payoff of the designated debts from an equalized balance of the Parties' retirement accounts.

5.   NYSCEF Doc. No. 15.

6.   NYSCEF Doc. No. 15, Paragraph 7.1.

7.   NYSCEF Doc. No. 15, Paragraph 7.10. Further, at Article IX, the parties agreed that Plaintiff would maintain life insurance at his cost with a death benefit of $450,000 until Plaintiff had fully paid his maintenance obligations to Defendant.

8.   NYSCEF Doc. No. 15, Paragraph 8.2.

9.   NYSCEF Doc. No. 15, Paragraph 14.2.

10.   NYSCEF Doc. No. 15, Paragraph 15.1.

11.   NYSCEF Doc No. 28: So-Ordered Transcript of the May 27, 2026 Proceedings; NYSCEF Doc. No. 29: Order Regarding Attorney's Fees.

12.   NYSCEF Doc. No. 32, Paragraph 2: "Although Plaintiff's failure to appear resulted in unnecessary expense and wasted judicial resources, I do not oppose restoration of Plaintiff's original motion [Motion Sequence No. 1], provided my application for counsel fees is considered, and respectfully request that the Court determine Plaintiff's application on its merits."

13.   NYSCEF Doc. No. 32, Paragraph 10.

14.   NYSCEF Doc No. 34, Page 1: Defendant's Memorandum of Law.

15.   NYSCEF Doc. No. 34.

16.   Plaintiff states "[m]y current compensation consists primarily of salary, together with a modest annual bonus, which was approximately $13,000 last year and which is not expected to continue after retirement. Thus, the maintenance obligation imposed by the Stipulation was calculated against present employment income, even though both of us understood that my income would materially change during the term of the obligation." NYSCEF Doc No. 42, Paragraph 14.

17.   NYSCEF Doc. No. 14, Paragraph 13.

18.   The Parties were married on September 19, 1992, and this action was commenced on January 16, 2024.

19.   NYSCEF Doc. No. 34, Page 6.

Keri A. Fiore, J.