Some divorced husbands complain that their wives made-off with their money, but now a man is simply blaming Madoff. Yes, Bernie Made-off with Everyone's Money is the reason that Steven Simkin is asking that his divorce settlement be renegotiated.
The Manhattan attorney said the money he gave his ex-wife Laura Black was partly based on the $5.4 million invested with Madoff.
"It remains only fair and equitable for Laura to shoulder her share of that harm," Simkin claims in court papers.
However, some lawyers think that he will have a tough time getting his money back. The cheater in this case is not a spouse.
"For the last 100 years there has been a principle of Anglo-Saxon law that if there is a mutual mistake of fact in a contract, it could be voided," notes famed divorce lawyer Raoul Felder. "For instance, if I give you a thousand dollars for a property in Bangkok, and it turns out we both believe there was a property in Bangkok, and we were both mistaken, then the contract would be dead. Here, they both believed that there was stock worth a certain amount of money with Madoff and there wasn’t.
"It boils down to one key issue. Was Simkin negligent in not ascertaining what the investment was worth? A fair answer probably is, Madoff fooled the smartest people in the world, and Simkin doesn’t even seem to fit into that category, so he has a case."
Cliff Solomon, a divorce attorney in Westchester, NY disagrees. "His former wife wasn't the one who defrauded him, it was Madoff."
Solomon says that judges look to see if a spouse was dishonest about listing marital assets as their criteria. Sometimes people don't make good deals and you can't go back.
"It’s a tricky question," he says. "It wasn’t her fraud. She didn’t do something. Madoff did."
However, he says that one never knows how a judge will rule. "It could go either way but I would bet that he’s most likely stuck because his former wife wasn’t the one who defrauded him."
Whatever the conclusion, each divorcing person should take stock of all assets before signing on the dotted line. Change is never easy.