As a matrimonial lawyer, we have all experienced the client who asks us weekly, if not daily, why we cannot effectively find a way to compel his or her spouse to settle what the client believes (and perhaps you, as the lawyer believe) is a straightforward case.
The answer to that question remains the same: in New York, divorcing spouses have an absolute right to a trial, and they are not required to settle. This is, of course, not the answer that the client who is looking to exit the process wants to hear, but it is, nonetheless, the answer.
Divorcing spouses have differing views on what constitutes unreasonable or obstructive conduct. Sometimes, one spouse will make a settlement proposal and, if the other spouse so much as hints at disagreeing with any of it, the offering spouse will declare the other spouse “unreasonable.” We can debate what it means to be “unreasonable” for the rest of time.
For now, let us examine the consequences to the divorcing spouse who intentionally blocks any path to a settlement, whether due to (a) underlying psychological disorder, (b) a refusal to share ordinary course financial information that is otherwise discoverable in a matrimonial action, and/or (c) the assertion of positions that the opposing spouse and his/her lawyer would never in good faith accept because those positions, at best, have no basis in law or fact.
Is there any consequence, or are there any consequences, to that type of divorcing spouse, even though you cannot compel that same spouse to settle? The answer is yes, and that brings us to the Appellate Division, Third Department’s recent decision in Marshak v. Marshak, 2025 NY Slip Op 04281.
In Marshak, the parties had a “longstanding romantic and business relationship that began in the early 2000s” but did not marry until 2018. They acquired “significant assets” before marriage, including their residence that became jointly titled in 2015. The parties were also shareholders in a business (named “IPI”) that they founded prior to marriage.
The wife commenced a divorce action in December 2020. After an eight day, nonjury trial, the Supreme Court distributed the marital assets, declined to award either party maintenance, issued a directive that the husband pay the wife $223,807 to cover 2020 income tax liabilities, and directed that the husband pay the wife $549,962.37 in counsel fees and $122,951 in expert fees.
The husband challenged several aspects of the trial court’s decision. The focus of this article is on the husband’s claim that the trial court abused its discretion in ordering that he pay the wife’s counsel and expert fees as noted above.
In affirming the trial court’s decision as to counsel and expert fees, the Third Department explained as follows in its decision, which I am intentionally breaking down into constituent parts below as each part is worthy of mention.
Supreme Court further credited the proof that the husband unnecessarily complicated this case by, among other things, refusing the wife’s offer to engage in mediation to resolve their financial disputes because he wanted to avoid disclosing information about the finances of IPI (emphasis added).
By doing so, the husband forced the wife to engage in prolonged discovery to obtain information about IPI and prepare to litigate the disposition of other assets, retain an expert to analyze the corporate ledgers to determine how corporate monies had been used by the husband and how much of that money should have been paid to the wife, and then go through an extended trial (emphasis added). Suffice it to say, in view of the financial circumstances of the parties, the relative merits of their positions, and the tactics of the husband in unnecessarily prolonging and complicating this litigation, Supreme Court properly exercised its discretion in directing the husband to pay counsel and expert fees to the wife.
To reiterate, a substantial counsel and expert fee award was granted to the wife because, among other things, the husband refused the wife’s offer to engage in mediation. Why did the husband refuse to engage in mediation?
According to the decision: because he didn’t want to disclose information about IPI. As the decision explains, the parties “amassed monies from their work for, and shareholder distributions from, IPI and related entities, and had interests in real property adjacent to the marital residence through their retirement accounts from IPI.”
Lesson #1: The divorcing spouse who refuses an offer to mediate, or otherwise try to facilitate a settlement, because he or she does not want to disclose financial information that is otherwise discoverable in a divorce action may pay a hefty price at the end of the day.
Lesson #2: The divorcing spouse who, through his or her conduct, forces the other spouse to engage in extended and costly discovery and expert analysis that could have otherwise been avoided or at least streamlined in a non-litigation setting may also pay a hefty price at the end of the day.
So, while it is true that divorcing spouses have an absolute right to a trial, those same spouses do not have an absolute right to unnecessarily prolong divorce litigation with impunity, thereby causing legal and expert fees to escalate. Stated differently, should a divorcing spouse choose that course of action, based upon Marshak, it may cost him or her a pretty penny when all is said and done. If, as a matrimonial lawyer, you find yourself representing a spouse of this kind, it may be wise to read the Marshak decision.
"Unnecessarily Prolonging Divorce Litigation May Cost You Dearly," by Alan R. Feigenbaum was published in the New York Law Journal on September 25, 2025.
Reprinted with permission from the September 25, 2025, edition of the New York Law Journal © 2025 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited.