In my commercial litigation days, I recall marathon preparation sessions with witnesses before depositions. Often times, I heard far too much emphasis being placed on the “I don’t recall” answer, i.e., if your witness is faced with a challenging question, he or she can always default to “I don’t recall.”

Let me begin by saying that that is, unequivocally, terrible matrimonial legal “advice” which can—and does—lead to dismal consequences in divorce trials for those witnesses who believe that a knee-jerk “I don’t recall” answer will somehow persuade the finder of fact.

To be clear, if “I don’t recall” is the truthful answer, then it is the truthful answer. What it cannot be—unless one wants to see their divorce case go up in flames at trial—is a means to try to disguise the fact that one’s case-in-chief is lacking in facts.

Why am I making such a fuss over the credibility of a divorcing spouse’s testimony at trial? To answer that question, look no further than Justice Jeffery S. Sunshine’s recent decision in Khalil v. Mahmoud, 2025 NY Slip Op 50348(U) (Sup. Ct., Kings Cty. 2025).

In Khalil, the court granted a third-party intervenor’s application to declare that the intervenor had a 50 percent ownership interest in the two-family marital residence, where the intervenor entered into a joint venture agreement with the plaintiff-husband more than 20 years ago.

The defendant-wife argued that the intervenor had no ownership interest in the marital residence and was instead a mere tenant who paid rent; she further claimed that the husband was attempting to effectively remove 50 percent of the marital residence from the marital estate and therefore carve it out of equitable distribution.

The court heard testimony from the intervenor’s husband, the husband, a real estate attorney who prepared the joint venture agreement, a real estate agent who at one point rented out a portion of the marital residence at the request of the intervenor’s husband, the intervenor herself, the wife, and other witnesses.

In this article, I will focus on the wife’s testimony. She testified that she did not believe the joint venture agreement was legitimate because “there was a typo in the house number on one (1) page of the agreement.” However, on cross-examination, “she conceded that the house number is accurate in all other parts of the joint venture agreement.”

When questioned on cross-examination about the testimony of the other witnesses, the wife “did not deny or dispute any of their testimony but asserted that she did not ‘recall’ whether what they testified to was accurate or not and she asserted repeatedly that she did not ‘recall’ details about meeting the intervenors and any discussions around the purchase of the residence.”

In terms of just some of the testimony that the wife did not deny or dispute, the husband testified on cross-examination that “the defendant-wife was invited to but declined to attend the meetings with the lawyer regarding the joint venture agreement…He testified that he asked the defendant to be on the deed with him for the residence but that ‘she refused to be on the deed because she believed that the mortgage interest is against our religion, and I respect that.’

The court’s conclusions regarding the wife’s testimony are unambiguous:

The Court finds that the defendant-wife did not testify candidly and that her testimony wholly lacked credibility. The level of the defendant-wife’s duplicity in her testimony was palpable: she readily offered self-serving testimony on direct examination but appeared to be unable to ‘recall’ significant, important facts and details when cross-examined by the attorney for the intervenor. Defendant-wife did not deny the plaintiff-husband's credible testimony that he discussed purchasing the residence with the intervenor rather, defendant-wife merely stated that she could not ‘recall’ any of the specific facts and circumstances testified to by the numerous other witnesses. Similarly, she alleged that she could not ‘recall’ that the children of both families played in the backyard of the residence and any other basic questions posed by the intervenor's attorney on cross-examination and that there was a discussion between the families as to preferences of which family would live in which apartment…

Having had the opportunity to observe the testimony, the Court finds that while she appeared unwilling to directly contradict all the other witnesses’ testimony, she appeared only able to ‘recall’ questions posed to her by her attorney on direct testimony and was unable to ‘recall’ the questions posed to her by intervenor's attorney on cross-examination. The Court does not find the defendant-wife’s testimony candid or credible (emphasis added).

As to the joint venture agreement, “one partial numerical error in one place which is clearly a typographical error” was not, as the wife asserted “a credible basis to find that the document is fraudulent particularly where there are no other inconsistencies and there is overwhelmingly credible testimony by numerous other witnesses.”

To hammer the point home, the decision in Khalil explains that the wife “maintained her litigation position that defies the facts presented and continued to assert her claim of fraud even where there was no proof of any such scenario and where the documentary proof had been provided to defendant’s counsel before the trial…Here, there is no credible testimony or documentary evidence in support of defendant-wife’s position except her self-serving testimony which the court found was not credible.”

Speaking of credibility, there is this salient fact:

Notably, at the end of her testimony on cross-examination, after vigorously arguing that the intervenors were colluding with the plaintiff-husband in an attempt to keep one-half (50%) of the residence out of the marital estate, the defendant-wife apparently changed her position and asserted that ‘if the Court sees [Intervenor's husband] owns 50 percent then I am very glad to give it to him. I would not take anything that is not mine, sir’. Nonetheless, thereafter, in the summation, defendant-wife through her attorney argued that if the Court found that the interventors are legal owners of a one-half (50%) interest in the residence that she should be awarded all (100%) of the remaining one-half (50%) ownership interest and that the plaintiff-husband should not be entitled to share in any equitable distribution of the marital portion in the residence.

Let us take a moment to remember the testimony of Rosa Lopez, the former housekeeper of O.J. Simpson’s neighbor who testified at the infamous murder trial that she saw Simpson’s Bronco outside his home “shortly after 10” on the night of June 12, 1994 around the time prosecutors said Simpson was committing murder two miles away. In one stretch of her testimony, she uttered 50 times “I don’t remember” in Salvadoran Spanish—“no me recuerdos.”

As the divorce lawyer, before you rush off to trial, do yourself a favor and make sure that your client is not going to have a, shall we say, Rosa Lopez moment (or moments) on the stand, because if that happens, as the saying goes: “case closed.”

"In Divorce Trials: Credibility Is King," by Alan Feigenbaum was published in the New York Law Journal on May 22, 2025.

Reprinted with permission from the May 22, 2025, edition of the New York Law Journal © 2025 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited.