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Ponzi Schemes, Settlement Agreements and the Mutual Mistake

BY Janice G. Inman
January 27, 2011

During the current economic downturn, many people have unfortunately discovered that they have been the victims of sharp dealers and their Ponzi schemes. That means that some divorced couples and their attorneys now have one more thing to worry about. Now that an asset that went to one party has been found to be valueless, that settlement agreement that seemed so fair three years ago may no longer look so equitable. Can anything be done for the ex-spouse who finds himself stuck with a phantom asset?

In a dismissal of a suit, granted by State Supreme Court last year, the answer to that question was, “No.” However, the Appellate Division, First Department, took the case up and went the other way, finding that a man who took an account managed by Bernard Madoff as part of his share of the marital estate may seek to recover some of the “good” marital assets from his ex-wife. Simkin v. Blank, 3016, NYLJ 1202477009087, at *1 (App. Div., 1st, Decided January 4, 2011) (Gonzalez, P.J., Tom, Andrias, Catterson, Moskowitz, JJ.).

An Agreement

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