Dr. Susan Hirschfeld, wife of multi-millionaire real estate mogul Elie Hirschfeld, Esq., has brought action in Manhattan Supreme Court for maintenance and spousal support from her estranged husband.
Mrs. Hirschfeld claims that her husband (who is worth in excess of half a billion dollars which he inherited from his father) owes her approximately half a million dollars in back support/arrears, pursuant to a separation agreement the parties signed back in 2008. Per the agreement, Mr. Hirschfeld who is president and CEO of Hirschfeld Properties, LLC, was supposed to pay his wife about $12,000 per month in support – presumably for herself and their five minor children. That’s right. Twelve thousand. Is it me, or does that seem like a pittance for a man worth the kind of dough Mr. Hirschfeld is said to be worth? (Read this Daily News article about the Hirschfelds. Very inneresting) https://www.nydailynews.com/archives/news/2005/08/08/2005-08-08_family_feuds_as_abe_fades.html)
Well, in any event, the estrangement between the Elie and Susan Hirschfeld came to a height last year in Idaho, when, at the airport, Mr. Hirschfeld allegedly faked having diarrhea in order to get to New York ahead of his wife so that he could divest the marital residence of all of its assets. According to the New York Post:
Last February, Elie, 59, moved everything out of the family’s 4,000-square-foot apartment – including the three kids’ toys, beds, video games and schoolwork, claims his wife of 12 years, Susan. He even swiped “the $10,000 worth of medieval figurines and other collectibles which they treasured and that used to be in their rooms,” she says in a sworn affidavit.
The Post report also goes on to detail all of the effects Mr. Hirschfeld swiped from the Fifth Avenue abode, including furs, artwork, rugs, furniture, silver and decorative arts.
I am certain the Hirshfelds had a prenuptial agreement (although, I wouldn’t exactly be shocked if they actually don’t.) However, even assuming they did not have a prenup, I still think that Mrs. Hirschfeld might have some difficulties collecting much of the $500 million dollar fortune her husband reportedly inherited from his father, eccentric billionaire and parking garage mogul, the late Abe Hirschfeld. The reason for that is that New York, unlike say, London, is an “equitable distribution” town. That means a lot of different things, but one thing it means is that inherited property is not a part of the marital estate. So if there is a divorce, the monied spouse gets to keep all their inheritance, unless it was somehow “commingled” with the marital property.
Elie Hirschfeld is a lawyer after all. I would be stunned, frankly, if he was stupid enough to “commingle” his separate property with marital property. I mean, my hunch is that a man who would leave his wife and kids at the airport in Idaho while feigning a stomach virus, charter a private jet at the stunning cost of $40,000 and jet to New York without his family so that he could “get to New York ahead of them and empty the apartment” is not a man stupid enough to commingle his separate property with marital property. He seems too much of a schemer for that.
Ok. Now, about the Dr. Hirschfeld’s lawsuit against her husband. Well, first of all, my hunch is that Mrs. Hirschfeld is bringing a breach of contract action against her husband and she is seeking “specific performance” of their agreement, or is trying to “set aside” the agreement altogether, as opposed to suing for “divorce.” But I could be wrong. Without seeing any of the paperwork, it is hard to surmise which approach she is taking. But I will opine that this is a breach of contract case and that she is arguing that, first of all, he is in breach; and second of all, that the $12000 per month in maintenance and spousal support for a wife and five children of a man worth in excess of half a billion dollars is incredibly imbalanced and fundamentally inequitable, and that as such the contract should be set aside. In short, she is looking to up the spousal support and maintenance award, big time.
Maintenance. What is the purpose of maintenance?
Maintenance Awards, certainly in New York State, have a dual purpose. The first is to “achieve equity between the parties upon termination of their marriage”; and the second is to “attempt to provide for each party in the marriage, such that the “standard of living the parties established during marriage, coupled with “economic needs” of the parties” is realized, post marriage.
Maintenance after a divorce can be either life-long, http://www.divorcesaloon.com/how-to-get-life-long-alimony-now-called-maintenance or rehabilitative – meaning it would be for a limited duration until the happening of a stated purpose, for example, the spouse who is receiving maintenance gets a job, remarries or something like that.
Well. The Hirschfelds are not divorced – and they may never divorce; and that is perfectly legal. I mean, if they wanted to divorce, that is permitted after one full year of a legal separation where both parties “substantially complied with the separation agreement as executed – if that agreement, in and of itself, is valid.”
But who knows what the terms of that agreement are? They are both Jewish and both would have to agree to remove any barriers to remarriage (or obtain a GET) pursuant to New York Law in order to get a divorce. However, I am not sure whether their separation agreement contained any language that would make it difficult for Mrs. Hirschfeldto obtain a GET. I know that she attempted to divorce him last year and he did not consent to the divorce, so she withdrew her petition. Whether a provision in the Hirschfeld’s separation agreement that speaks to the issue of the GET would somehow invalidate the agreement is an issue I can’t really speak to with any authority at this time. I can say this:
some spouses have coerced their partners into entering agreements that were manifestly unfair by threatening to fail to remove any barriers to remarriage by obtaining a Jewish Divorce, called a “Get.” The courts have refused to uphold agreements executed under these circumstances.” See for example, Golding v. Golding, 176 A.D. 2d 20, 581 NYS 4 (1st Dep’t 1992); Perl v. Perl, 126 A.D. 2d 91, 512 NYS 2d 372 (1st Dept 1987). See DRL section 253(2)
Whether there is any fundamental unfairness in the agreement between the Hirschfelds that goes to the issue of the GET, I can’t say, I don’t know. But as far as the validity of the separation agreement goes, I will say that a separation agreement must contain certain elements in New York in order to be valid. The elements of a valid separation agreement are:
DRL (Domestic Relations Laws) section 236 Part B(3) sets forth the standard for a properly executed agreement. See also Akgul v. Akgul, 175 A.D. 2d 572 N.Y.S. 2d 338 (2d Dept 1991)
1) The agreement must be in writing (Statute of Frauds)
2) The parties must sign the agreement
3) The agreement must be filed with the county clerk
4) The agreement must provide a provision that the parties were informed about the provision of the Child Support Standards Act (“CSSA”)
5) The agreement expressly gives the party the right to live separately and apart from each other.
6) Also, provision regarding maintenance must be “fair and reasonable” and “not place a party in jeopardy of becoming a public charge.”
7) Ditto for child support. The agreement must make provisions for their care and support and this must be in compliance with the CSSA
So. Let’s assume that the Hirshfelds are “legally” separated pursuant to an otherwise valid separation agreement (and forget about the GET for now). Then their separation agreement would likely have included a provision for “spousal support” and “maintenance.” And this could be pursuant to the parties’ agreement with no input from the court. Or the court could have been called upon to determine the terms of that agreement if the separation was pursuant to a “judgement of separation” which I do not think happened here. In awarding maintenance, the court looks to the “marital standard of living of the parties” and other factors, such as the ability of the non-monied spouse to become self supporting. As we have mentioned in previous posts, Mrs. Hirschfeld is a doctor and is fully capable of becoming “self supporting.” That fact will mitigate against her getting life-long maintenance if the court were called upon to make the determination.
I think their agreement is a valid. That is my hunch. It, like any other contract, is governed by contract law. Mrs. Hirschfeld is arguing that her husband is in breach of the contract they signed. Is she seeking to set aside the contract? If she is, then she would want to look at the case, Christian v. Christian.
In Christian v. Christian 42 NY 2d 63, 396 NYS 2d 817, 365 N.E. 2d 849 (1977) the court held:
Agreements between spouses, unlike ordinary business contracts, involve a fiduciary relationship requiring the utmost of good faith…. There is a strict surveillance of all transactions between married persons, especially separation agreements….Equity is so zealous in this respect that a separation agreement may be set aside on grounds that would be insufficient to vitiate an ordinary contract…. These principles in mind, courts have thrown their cloak of protection about separation agreements and made it their business when confronted, to see to it that they are arrived at fairly and equitably, in a manner so as to be free from the taint of fraud and duress, and to set aside or refuse to enforce those born of and subsisting in equity.
To warrant equity’s intervention, no actual fraud need be shown, for relief will be granted if the settlement is manifestly unfair to a spouse because of the other’s overreaching…. IN determining whether a separation agreement is invalid, courts may look at the terms of the agreement to see if there is an inference, or even a negative inference, of overreaching in its execution. If the execution of the agreement, however be fair, no further inquiry will be made.
But maybe she is just seeking specific performance as opposed to having it set aside. Who knows?
Oh. Btw, the fact that she bore her husband five kids is a big plus for her. To the extent that Mrs. Hirschfeld can show that the support she receives is insufficient to provide for the children, the law makes clear that the court has great discretion to modify that separation agreement with respect to the issue of support for the children. I think the Page Six report stated that Dr. Hirschfeld complained that she needs money to “buy groceries” for the children, and to otherwise provide for their support. I strongly doubt that $12,000 per month for five children who are used to a certain standard of living, and whose father is worth half a billion dollars will be deemed adequate support by the courts.
On that basis alone, I think Dr. Hirschfeld stands a very good chance of getting that separation agreement set aside, or at least modified with respect to the issue of support.
Legal source for this article: New York Law of Domestic Relations by Alan D. Scheinkman