New York Law Journal, September 25, 2025 —
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.