New York Law Journal, May 22, 2025 —
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.”