In this case, the court must decide whether allegations that a party failed to comply with their obligations under a collaborative law accord require vacating the entire separation agreement. The case comes to the court on competing motions for summary judgment. The husband seeks to convert his signed separation agreement into a judgment of divorce. He argues that there are no factual issues in dispute, that he has a signed separation agreement, and that he has established grounds under Section 170 (7) of the Domestic Relations Law. The wife moves to vacate the agreement, arguing that her husband is guilty of overreaching, in large measure because he allegedly breached the disclosure provisions of the collaborative law agreement.

Many of the facts in this case are undisputed. The couple was married in 1980 and they have three children, two of whom are now emancipated. The couple encountered marital problems and after deciding mediation would not work, entered into a collaborative law process. In order to participate, both parties retained attorneys experienced in collaborative law, and signed a participation agreement.

The participation agreement was executed on September 8, 2009. It states that the collaborative process "relies on honesty, co-operation, integrity, and professionalism" and that the parties will deal in good faith and "shall provide all relevant and reasonable information" which includes "sworn statement of net worth and supporting documentation of their income, assets and debts." The parties acknowledge that they are setting aside "certain procedures" including "formal discovery proceedings." The participation agreement [*2]was signed by the husband and wife and their respective attorneys. Both attorneys are respected matrimonial lawyers with substantial experience. To assist in handling the couple's complicated finances, the parties retained a financial specialist who also signed the agreement.^[FN1]

A lengthy collaborative process ensued. It appears there were numerous collaborative sessions (at least twelve) and both parties, their counsel, and the financial expert participated. It is undisputed that the husband was in charge of the couple's finances. He has significant assets, traceable to his family, which provided the backbone of their income, and holds senior titles in various real estate based entities. The wife was a part-time college professor. Once the collaborative process commenced, the husband provided significant financial disclosure. He avers, without contradiction, that he provided income tax returns, financial statements, and detailed financial records to the attorneys and the retained financial specialist.

It is also undisputed that the husband was the titled owner of a one-half interest in an apartment complex known as EMA.^[FN2] At the commencement of the collaborative process, the husband approached his wife and her attorney with a proposed disposition of the husband's interest in EMA. The husband told his wife that he wanted to transfer his interest in EMA to trusts established for the benefit of their three children. In order to effectuate the transfer he wanted them to gift a portion of the interest and sell a portion of the interest. The trusts would then execute promissory notes to repay them each approximately $10,000 monthly, for a period of 30 years. They would then each gift to each of the child's trusts the difference between the value of the promissory notes and the fair market value of the asset. It is also undisputed that the transaction would deplete $900,000 of each party's lifetime federal gift tax exclusion.

According to the wife, the husband wanted to transfer the EMA interests and complete this transaction before completing — or even participating in - the collaborative process. While this allegation raises an inference regarding the husband's motivation in seeking to transfer the interests, the undisputed proof establishes that the husband and wife both consulted with their counsel regarding the proposal to transfer the EMA asset. Both sides also consulted with the financial expert, and at the conclusion of the process, they agreed to the husband's proposal to gift and sell his ownership interest in EMA. The parties signed all the necessary documents to accomplish the transfer (except the gift tax returns), and it occurred effective November 2009, two months after the collaborative law agreement was signed. It is undisputed that after the properties transferred, the promised payments from the trusts paid the wife $10,000 a month - there is no claim that any of these amounts are unpaid.

After the EMA transfer, the parties continued to negotiate in the collaborative [*3]process. The parties negotiations are not described in detail, consistent with the agreed-upon, private nature of the collaborative process. (For example, there are no affidavits from any of the professionals involved in the process.) The couple signed a separation agreement on June 10, 2010. It contains common language found in separation agreements. They acknowledged the role of the collaborative process, that they had "applied their individual standards of reasonableness and acceptability to the agreement," and that they believed the agreement "to be fair, just, adequate, and reasonable." In the final paragraphs, the parties acknowledged that they had full and complete discovery and they "unequivocally waive" any further disclosure. The attorneys oversaw the preparation of the agreement and notarized their respective clients' signatures.

After signing the agreement, the wife learned from a third-party that the husband had a girlfriend and allegedly used marital funds to finance that relationship during the time he was negotiating the separation agreement. According to the wife, she raised this issue with her counsel and the attorney probed the husband on it. The wife alleges that the husband then refused to negotiate and was unwilling to fully disclose his involvement in the alleged relationship. When the issue boiled over, the wife changed counsel and the collaborative process ended. Shortly thereafter, this action was commenced and the competing motions for summary judgment were filed.

THE STANDARD FOR COURT REVIEW OF SEPARATION AGREEMENTS

At the outset, this court must consider the allegations by the wife that the husband breached the collaborative agreement and whether such a breach constitutes fraud or overreaching under the principles established by the Court of Appeals in Christian v. Christian, 42 NY2d 63 (1977). In order to encourage parties to work out their differences with confidence in the binding nature of contractual agreements, New York courts are instructed to use restraint in evaluating separation agreements. Id. at 71; Ricca v. Ricca, 57 AD3d 868, 870 (2nd Dep't 2008); Korngold v. Korngold, 26 AD3d 358 (2nd Dep't 2006). But if judicial review is warranted, the terms and creation of post-nuptial agreements are subject to "strict surveillance." Christian at 72; Cruciata v. Cruciata, 10 AD3d 349, 350 (2004); Cardinal v. Cardinal, 275 AD2d 756, 757 (2000). To ensure that freedom of the parties was preserved despite the fiduciary relationship existing between husband and wife, "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 inequity." Christian, 42 NY2d at 72; Kabir v. Kabir, 85 AD3d 1127 (2nd Dep't 2011); Martin v. Matin, 72 AD2d 419, 423 (4th Dep't 1980).

Lack of transparency or disclosure has been an important factor in findings of overreaching. The court in Christian specified that overreaching has not occurred, and the court should not interfere "when there has been full disclosure between the parties, not only of all relevant facts but also of their contextual significance." However, "inequitable conduct or other infirmity might vitiate the execution of the agreement." A spouse, when they finally bind themselves, and waive their right to statutory remedies, "should be regarded as having done so only when they are in possession of every material fact" affecting the act of agreement.

In that regard, an agreement has been regarded as manifestly unfair to the degree [*4]of being "unconscionable" when it is one that "no [person] in his [or her] right senses and not under delusion would make on the one hand, and as no honest and fair [person] would accept on the other." Christian at 71, citing Hume v. United States, 132 US 406, 411 (1889). The inequality of an unconscionable agreement is "so strong and manifest as to shock the conscience and confound the judgment of any [individual] of common sense." Id. citing Mandel v. Liebman, 303 NY 88, 94 (1951). If a party alleges that the agreement allocates "substantially all of the marital assets to one party while leaving the other with substantial economic obligations," the court could find the agreement unconscionable even without any reference to culpable conduct on the part of the benefitted spouse. Tartaglia v. Tartaglia, 260 AD2d 628, 629 (2nd Dep't 1999); See Libert at 792; Grunfeld v. Grunfeld, 161 AD2d 973 (3rd Dep't 1990); Einhorn v. Einhorn, 24 Misc 3d 1250A (Kings Cty. 2009). In this case, the wife must demonstrate both overreaching and fundamental inequity in the result to prevail.

Developed in Minnesota in 1990, collaborative law attempts to foster an amiable rather than an adversarial atmosphere by creating a "four-way" agreement between each party and their attorneys "in which all are expected to participate actively," Lande and Herman, Fitting the Forum to the Family Fuss, 42 Fam Ct Rev 280, 283 (2004). The question of the scope of the participant's voluntary disclosure, which commentators have [*5]suggested is at the "hallmark" of the collaborative process, remains somewhat unsettled. Shepard, Uniform Collaborative Law Act, 38 Hofstra L Rev 1083 (2010). In an article considering the possible consequences for breach of the disclosure requirements in collaborative law, one commentator noted:

The act does not specify sanctions for a party who does not comply with the requirements of [the voluntary disclosure provisions of the Act]. The drafters felt that any attempt to do so would require the act to define "bad faith" failure to disclose. The result would be the opposite of what the act seeks to encourage - more resolution of disputes without resort to the courts. Courts would have to hold contested hearings on whether party conduct met its definition of bad faith failure to disclose before awarding sanctions. Such adversarial contests would also require evidence to be presented about what transpired during the collaborative law process which, in turn, would require courts to breach the privilege - and the policy of confidentiality of collaborative law communications - that the Uniform Collaborative Law Act seeks to create.

John Lande, Using Dispute System Design Methods to Promote Good-Faith Participation in Court-Connected Mediation Programs, 50 UCLA L Rev 69, 102-03 (2002).

It is important to remember that a party can unilaterally terminate collaborative law at any time and for any reason, including failure of another party to produce requested information. Thus, if a party wishes to abandon collaborative law in favor of litigation for failure of voluntary disclosure, the party is free to do so and to engage in any court sanctioned discovery that might be available . . . Parties to a collaborative law process are thus no different than parties who participate in litigation or other dispute resolution processes in having to make cost-benefit assessments with the aid of their counsel about whether they have enough information from the informal process of disclosure to settle at any particular time or need or want more.

Stephen N. Subrin, Reflections on the Twin Dreams of Simplified Procedure and Useful Empiricism, 35 W St U L Rev 173, 183 (2007); Shepard et al, Uniform Collaborative Law Act. 38 Hofstra L Rev 421, 456 (2009) (analysis of a uniform collaborative law statute compiled by a panel of experts). In another Texas case, the court held that a collateral attack on a valid separation agreement, by simply alleging a breach of the collaborative law agreement's disclosure provisions, was barred by res judicata. Pribyl v. Pribyl, 307 SW3d 882 (Ct. App. Texas 2010). However, the court expressed no opinion regarding whether the violation of collaborative law agreement's disclosure provisions could support a direct attack on the judgment of divorce granted after execution of a separation agreement. Id. at 887.

In the eyes of these experienced collaborative law commentators, the remedy for inadequate disclosure is for the aggrieved party to discontinue the collaborative process. The participation agreement in this case envisions the same, suggesting that if an attorney "learns that his or her client has withheld or misrepresented relevant information, or acted so as to undermine or take unfair advantage of collaborative process," then the attorney "must" terminate the collaborative process. In short, the participation agreement, by its terms, does not create a legal remedy if one party breaches their "good faith" obligation to [*6]disclose assets and information. The only redress is to discontinue the collaborative process.

In this case, the wife did not terminate the process prior to executing the agreement, nor did either attorney. Only after the agreement was signed, when the wife was told that the husband had financed his relationship with his girlfriend, did the wife terminate. For most intents and purposes the process had already reached its goal: the separation agreement was signed. Under these circumstances, the court declines to consider whether the husband's alleged breach of the collaborative agreement would subject the husband to a finding of overreaching under Christian v. Christian. If the wife or her attorneys suspected the husband was guilty of overreaching, they could have discontinued the process, but they chose not to.

This approach is consistent with the concept of collaborative law and judicial economy. Judicial probing into the details of the collaborative law process would undermine it and subject the attorneys, the financial expert, and the parties into a search for wrongdoing or overreaching inside this conciliatory process that, as the participation agreement states in its prefatory clause, relies on "honesty, cooperation, integrity and professionalism." This court declines to undertake that effort and holds that a breach of the participation agreement does not require a finding that the husband overreached during the collaborative law process.

Although this court declines to hold that a breach of participation is evidence of overreaching, it does not preclude the wife from advancing her claim. Under New York law, the husband had a fiduciary duty to his wife to disclose his assets. This fiduciary duty is a broad one and well settled under New York law. Levine v. Levine, 56 NY2d 42, 46 (1982); Loguidice v. Loguidice, 67 AD3d 544 (1st Dep't 2009); Smith v. Smith, 29 Misc 3d 1226A (Sup. Ct. New York 2010) (the fiduciary relationship that exists between spouses requires "the utmost good faith upon execution"). In this court's view, this broad fiduciary duty, already well-settled under New York law, does not require any investigation into the alleged breach of the collaborative law agreement. In that respect, the test of the separation agreement exists independently from the collaborative process:

Moreover, nothing [in the Uniform Act] changes the standards under which agreements or settlements that result from a collaborative law process are approved by a tribunal, or can be reopened or voided because of a failure of disclosure. Those standards are determined by law other than this act. Relevant doctrines such as fraud, constructive fraud, reliance, disclosure requirements imposed by fiduciary relationships, disclosure of special facts because of superior knowledge, and access to information are not affected by the act. Courts can order settlement agreements voided or rescinded because of failure of disclosure in appropriate circumstances.

Shepard et al, Uniform Collaborative Law Act, 38 Hofstra L Rev 421, 456 (2009). For these [*7]reasons, this court will analyze the wife's claim under the rubric of an allegation that the husband breached his fiduciary duty by failing to disclose assets prior to the execution of the separation agreement.

1.The status of EMA and the alleged failure to disclose its "marital" status.

The primary allegation of overreaching relates to the alleged failure to disclose the value and status of EMA. The wife asserts that EMA even if titled in the husband's name, was marital and subject to distribution because it was acquired and substantially appreciated during the marriage. The wife argues that the husband duped everyone involved — the wife's experienced collaborative law attorney, the financial expert, and her — to divert this asset from the marital estate and deprive her of her marital share of the property. The claim is rebutted by undisputed facts.

First, the wife had the assistance of experienced counsel when the husband advanced this proposal. The participation agreement was signed in September 2009. The EMA interests were transferred in November 2009 or later. The attorney and the financial advisors were working with the husband and the wife during this time. The wife's affidavit demonstrates that she knew about EMA and the husband's plan. She knew that the husband's parents had transferred assets to him and added, in apparent agreement with the goal of transferring valuable assets from the couple to their children: "I wanted to provide for our children."

Second, the wife states that she wanted the EMA transfer brought into the collaborative process and, although she describes the husband as "frustrated" in doing so, both parties, and their attorneys and consultants, became involved in the EMA gifting plan. The wife admits that she, her attorney, and the parties' financial consultant, met with the husband's accountant and discussed the gifting plan. While there is no evidence before the court that the wife's attorney approved the transaction, there is also no evidence that either attorney discontinued the collaborative process, as they were required to do under the agreement if the husband did not fully disclose his assets or overstepped his boundaries.

Third, there is no evidence, in any of the documents before the court, that the wife did not agree that the transfer of this asset to the children was a sound estate planning concept. (She acknowledges that the husband's father had made similar transfers to the husband as an estate planning tool.) There is no evidence that the wife opposed the concept in any manner. Although she now repeatedly questions the husband's motivation in making this proposal in her affidavits, she never states that she disagreed with the plan to have the benefit of the husband's family assets pass to her children. In fact, no where in the papers before the court does the wife assert that she wants this transaction unraveled.

Fourth, the wife claims that she was later told that the transfer of this gift to her children would divest her of a substantial portion of her lifetime gift tax exclusion. (In considering this issue, the court notes that there is no evidence that she intends any further gifts.) She admits that her counsel and her neutral financial advisor were present when the [*8]husband's accountant explained the transaction to her. There is no evidence that her attorney — or anyone else — deemed this estate planning transfer to be ill-advised or unwise even if the gift exclusion applied. The wife admits that during the meeting with the husband's accountant and their financial advisor, the accountants told her that she would have to surrender almost 90 percent of her gifting ability to make the plan work. The wife never asked any questions regarding her gifting ability when the phrase was mentioned, but she does not dispute that she was told that fact. In addition, the wife makes no claim that her husband was the source of the observation on the limitation of gifting ability. It was discussed, according to the wife's affidavit, by the neutral financial expert and the husband's accountant. The conversation occurred in the wife's presence, but the wife never inquired further of the financial expert or her own attorney. The wife swears that she was "confused" during the meeting with the accountants, but there is no evidence that she asked any questions or raised any objections to transferring this asset to her children's trusts.

Fifth, the wife complains that she was not a "party to the gifting that resulted in this gift tax." The question is not addressed in the husband's papers. The transfer documents indicate that the husband alone was transferring his interest to the trusts and that the wife, in fact, was not a transferor. It is then unclear on how the transfer of the husband's titled interest in EMA resulted in a gift tax issue for the wife, unless the husband and the other advisors concluded that when he transferred the interests, he was transferring his wife's marital interest in these assets as well as his own. Regardless, even if the transaction was a gift solely by the husband — and the wife had no interest — there can be no doubt that she approved the transaction. Because the gift transaction is outside the scope of the separation agreement, any tax or gifting questions may be the subject of an independent inquiry, but they are not pertinent here.

Sixth, the wife cannot point to any harm caused by this gift. The gift was given to the couple's children, allowing them to pass a substantial family asset tax-free, which the wife acknowledges is what she wanted to do. There is no evidence that the wife intends to further gift any asset or that she has been damaged by using $900,000 of her gifting ability. Furthermore, the wife does not allege that the husband benefitted from this transaction. The benefit runs entirely to the couple's children. Even if the husband engaged in some act of deception, fraud, or non-disclosure, there is no evidence, at least with respect to EMA, that he benefitted. In the absence of any benefit to the husband or harm to the wife, the suggestion that he misled her seems misplaced.

Seventh, despite her claims to the contrary, there is no evidence that the wife was coerced to make the EMA transaction or that she was not competent to do so. The transfer was discussed over several months, while she was represented by counsel, had a financial advisor, and had access to the husband's accountants. There is no evidence that during this time, the wife complained to her attorney — or anyone — that she was under pressure from the husband or his advisors to make the transaction.She claims that her husband's counsel, her own attorney, and the independent financial advisor never told her that EMA was anything other than the husband's separate property. She states that "I did what I was told to do and what I assumed from what was being presented in the collaborative process I had to do." Curiously, she never specifies who told her what and suggests, based on this [*9]ambiguous statement, that the husband was directing her to sign the transfer documents. (A careful review of her affidavits reveals no such claims.) These generalized suggestions are not evidence that the husband's conduct "precluded the exercise of the wife's free will." Lefkowitz v. Lefkowitz, 276 AD2d 598 (2nd Dep't 2000); Cavalli v. Cavalli, 226 AD2d 666 (2nd Dep't 1996) (generalized contentions that a party felt pressured are insufficient). As one court noted:

Unsubstantiated, conclusory statements, such as: "I never believed that the bare bones statements of the attorney which I have read was to be agreed upon before the whole arrangement was set down on paper in detail and analyzed," do not warrant vacatur of the settlement. As Special Term noted in its decision: "Plaintiff has failed to raise any grounds to set the stipulation aside except that she has apparently changed her mind. Clearly, after many conferences, full representation by counsel, and discussions with the Court, a change of heart is insufficient."

Sontag v. Sontag, 114 AD2d 892 (2nd Dep't 1996). Based on these facts and the lack of evidence to support the wife's claims, this court declines to find that the husband was telling the wife what to do, coerced her, and/or overreached in the gifting of the EMA to the couple's children.

Eighth, the wife's objections to the gift transaction are substantially muted by her ratification of the transfer over the past fifteen months (she has received $10,000 amonth during this time as a result of the transaction). There is no evidence that the trusts have failed to make these payments. There is no suggestion in the papers before this court that the wife has declined to take these payments or is now prepared to repay the amounts paid to her. Having taken the benefits of the transaction, the court finds that the wife's conduct is ratification of the EMA gift transfer.

Finally, this court has no jurisdiction over the transfer of the EMA interest. It is undisputed that the property is now owned by the children's trusts, and there is no plenary action to void the gifts. The children's trusts are not parties to this action and, this court declines to rescind — or reach any judicial finding regarding the gifts — without the children's trusts appearing before the court. Under these undisputed facts, there is no evidence that the husband concealed the nature of the EMA transaction from his wife or breached his fiduciary duty to her in the transfer of this asset.

2.The claim that the husband reserved a marital interest in EMA that was not subject to equitable distribution.

The wife argues that the husband, while purporting to transfer all of his interest in EMA to the children's trusts, did not transfer the entire value and preserved some portion of the asset in his own name. The basis for this allegation is an affidavit from a financial expert, who evaluated the transaction. The expert states that while the husband claimed the value of the interests sold and gifted to the children's trusts was approximately $5.5 [*10]million, the actual value of the husband's one-half interest in EMA was $8.5 million. Based on this analysis, the wife asserts that the husband has retained some ownership interest in EMA and that she is entitled to her marital share of that interest.

However, in reaching this conclusion, the wife misreads the analysis. The wife's expert reviewed the gift tax transaction and noted that the full value of the asset owned by the husband was estimated at $17 million. The husband owned a half interest, which would be worth $8.5 million, but under the gifting plan, the asset was valued at $5.5 million. The expert opined that the husband's discount of his family's share of the EMA "may not meet the required standards of proof now being utilized" and as a result, he believes that the value of the EMA interest which was provided by the husband to his accountant, may not be sustainable for gift tax purposes. He concludes that these values "may be construed as misleading to the government," but never states that the value of the assets, as determined by a reputable consulting firm, are inaccurate or not reflective the full value of the asset.

The wife, in her affidavit, claims it is the expert's opinion that "from the information available to him that there is at least $3 million in assets which was not disclosed by the plaintiff." Again, a close reading of the expert's affidavit does not support this conclusion. He does not suggest that the difference between the $8.5 million listed as the full fair market value of the asset and the $5.5 million value of the sale-gift back transaction means that a $3 million marital asset remained undisclosed and undistributed at the time of the signing of the separation agreement. His affidavit simply states that the use of the $5.5 million valuation for federal gift tax purposes may be less than what the Internal Revenue Service may later determine to be the value of the assets if and when an audit occurs regarding the validity of the transaction. While the wife contends that $3 million in assets are undistributed, her expert's affidavit does not substantiate that claim. This court cannot find any evidence that the husband conveyed anything less than his full interest in EMA to the children's trusts.

3.The EMA gift as a transfer in contemplation of divorce.

The wife contends that the conveyance of the EMA was a "transfer in contemplation of divorce" and should have been considered a marital asset. The wife cites a series of cases that suggest clandestine diversion of assets out of the martial estate, prior to execution of an agreement, can be evidence of overreaching. However, in every case, the alleged overreaching occurred when a party clandestinely removed an asset from the marital estate. See Buchsbaum v. Buchsbaum, 292 AD2d 553 (2nd Dep't 2002) (husband makes large family gifts just prior to the commencement of the divorce); Surasi v. Surasi, 2001 NY Slip Opn 40408U (Sup. Ct. Richmond Cty. 2001) (husband transfers all of his assets to his children's trusts without spousal consent).

This case is easily distinguished. Here, the wife agreed to the transfers, and as a trustee, signed promissory notes requiring the trusts to make payments to her for an extended period of time. The husband did not secretly transfer assets out of the marital estate. The undisputed evidence establishes that he did the transfers before the collaborative process (willing or otherwise), the attorneys reviewed it, the wife participated in meetings regarding the assets, and after several months of deliberation, she agreed to [*11]the transfer. Furthermore, since the date of the transfers, the wife has been paid $10,000 a month from the trust. After having agreed to the transfers and gifts with the assistance of counsel, after having the transaction reviewed by an independent financial expert, after having her children benefit — by millions of dollars — from these actions, and after having collected more than $100,000 as a result of the transaction, the wife's claim that this was done fraudulently to somehow deny her a marital share of the asset is simply unjustified by the facts or the law.

4.The lack of financial disclosure and "unknown liabilities."

The wife alleges generally that the husband failed to provide financial disclosure. The husband in response to this allegation, states that he produced three years of income tax returns, K-1 (partnership) statements, financial statements, operating agreements, estimated values, debt loads, and his extent of ownership for every asset he owned. The wife does not rebut this direct assertion, but claims that it was still inadequate. The court finds that disclosure was adequate and that the wife's claim is unfounded.

Furthermore, the wife alleges that in transferring assets to her, the husband also transferred unknown liabilities that could impair the value of her interest. But as the husband notes, the agreement provides that the husband will indemnify the wife for any "contingent liabilities" and, given the husband's ample personal assets, there seems to be little reason to expect that the interests will be impaired by unknown liabilities. For these reasons, the court finds no evidence of overreaching.

5. The claim that maintenance is illusory.

The wife contends that the maintenance payable under the agreement is illusory. The agreement states that half of the husband's income will be paid as maintenance, and that he will pay the wife at least $75,000 in maintenance annually regardless of his income. The agreement does not specify how the husband will annually notify his wife of his income, how it will be paid, or when the payments for a specific year begin. The lack of explicit drafting, however, does not minimize the commitment of the husband to evenly share his reported income. While there is a description of the income as including three sources, there is nothing to suggest these sources are exclusive. In the court's view, the language creates an enforceable claim by the wife for maintenance equal to half the husband's income, hardly illusory. While not specified, it would seem that the husband's income tax return would be the starting point for calculation. There is no evidence that the husband has failed to report his annual income to his wife or failed to pay her one-half of that amount. The agreement, in the maintenance section, also mentions the $120,000 paid annually to each parent under the EMA sale and gift agreements between the couple and their children's trusts. While it is curious that this detail is included in the maintenance section, the court draws no adverse inference from it.

Some indication of the reasonableness of the maintenance in the agreement is found by comparing it to the temporary maintenance standard recently enacted by the legislature. Under that formula, if the husband's income is $275,000 annually and the wife's income is imputed at $20,000, the annual maintenance would be calculated at $81,000. If the husband's income falls to $200,000 annually and the wife's income is imputed at [*12]$25,000, the guideline amount drops to $60,000 annually. If the wife had no income and the husband had $275,000, the formula suggests the guideline amount would be slightly more than $81,000. Under any of these scenarios, the amount to be paid according to the agreement (one half of the husband's income) would be at least $100,000, significantly more than the amount required under the temporary maintenance formula. While the comparison is not exactly symmetrical, the conclusion is inescapable. By committing half of his income to maintenance, the husband's payments are more than what the legislature considered reasonable in enacting the recent maintenance formula. At least with respect to the amount of maintenance, this court cannot classify it as inadequate or illusory.

The wife also contends she agreed to termination of the maintenance when the husband reached the age of 65 because she was coerced and pressured. As noted earlier, this court can find no direct evidence of such coercion or pressure. At the time the parties agreed to this term, the wife was represented by counsel and her financial advisor. There is no evidence of any specific act of coercion applied to the wife regarding this aspect of the agreement. The court also notes that the maintenance continues even if the wife cohabitates or remarries, a provision that is contrary to the usual maintenance clause which often terminates a spouse's right to maintenance upon remarriage. See Baron v. Baron, 71 AD3d 807 (2nd Dep't 2010); Penna v. Penna, 29 AD3d 970 (2nd Dep't 2006).

In a final consideration, the suggestion that the maintenance is inequitable and/or illusory requires examination of the remainder of the property distribution. The wife received half of a $7.8 million investment account, a house, the family's cottage, one-half interest in several real estate development companies, and thirty years of annual income of $120,000 from the sale of the EMA property to the trusts. By any standard, the wife will have substantial assets and substantial income after her maintenance is terminated. This court declines to find that the maintenance, as paid under the agreement, is unconscionable or unfair.

6.The interests in real estate development assets.

The wife argues that the husband misled her on the distribution of another asset, KHC.^[FN4] There is no question that the husband disclosed his interest in KHC during the collaborative process. In the wife's affidavit, she never asserts that the asset — or any portion of it — was marital property. She never suggests that it was acquired by the husband during the marriage. There is no evidence that she raised this issue with her husband in the collaborative process or that her attorney questioned this issue.

Regardless of the status of this asset as either marital or separate, the agreement suggests that it is destined for the couple's children. The agreement provides that the husband will retain his ownership and pass it either to their children or a charity, and that the wife will have input regarding that decision. The wife's claims regarding this asset, to the extent that they may be cognizant at all, are at best "buyer's remorse." The husband disclosed the asset and set forth a plan to pass it to his children. The wife, after being made aware of the husband's plan, agreed. There is no overreaching or deception. [*13]

The wife also argues that her assignment of one-half interest in other real estate properties is illusory because the husband retains voting rights and control over them. However, there is no evidence that these properties have been mismanaged by the husband. If the husband does not accord the wife her rights as an owner, she has rights as a holder of units in the limited liability companies and can pursue them. This court, confronting solely a claim to vacate the agreement, will not undertake the task of predicting how the husband will treat his wife under the governing agreements in these companies. Again, if he does not accord the wife her rights, then she has other remedies consistent with her ownership interest.

When considering the issue of whether these conveyances are evidence of manifest unfairness, this court declines to make that judgment. The husband gave his wife half of his interest in these entities, which is proportionate to her marital share. The court will not join in the wife's speculation that the husband, as the holder of a similar share of the same asset, at some future time may not fairly share profits or income; or that the husband's sister (as a co-owner) may at some time engage in oppressive conduct against the wife. The marital asset was fairly and equitably distributed. The wife could have argued for and sought voting interests in these entities but did not do so. This court, in deciding whether the distribution is fair and equitable, need not conclude that the wife received the same exact interest as the husband. This court declines to find the husband's retention of sole voting rights in a real estate management companies in which he has made real estate management decisions constitutes a "manifestly unfair" distribution. The remainder of the wife's complaints on this issue are without merit.

7.The husband's use of funds for his girlfriend.

The wife alleges that the husband used marital assets for his girlfriend. This alleged "deception" (as described by the wife) was recognized after the separation agreement was signed. The wife asserts that the financial expert told her that more than $100,000 had been taken from "marital assets," but here is no corroboration for this hearsay allegation. There is no evidence of where the funds came from, which accounts they were paid from, or how they were paid. The wife alleges that the husband refused to provide her documents unless certain conditions were met, and asserts that "he still felt that he had complete control over all of us in the collaborative process."

However, whether the husband removed funds from the Smith Barney account after the value of it had been established is not evidence of fraud. In the separation agreement, the parties agreed on an account balance. The wife agreed with this account balance, even thought the date of the calculation is not stated. The wife agreed that one half of this account would be paid to her. The wife had a clear opportunity to contest the valuation of the account, or could have easily insisted on including in the separation agreement a date for calculation of the account, perhaps on the date that the couple physically separated. There is no evidence that the wife inquired regarding how the account was maintained or whether the husband had, in the months prior to defining the account balance, withdrawn any sums for any non-marital purpose. The wife, having never asked for a date of calculation or apparently never having asked for any evidence of any account activity prior to settling the accumulated sum, cannot be heard to now complain that the account [*14]statement contained in the agreement is not an accurate and fair compilation of the marital funds in the account.

Even if the husband invaded the account after the parties agreed on the balance for marital distribution purposes, the wife sustains no harm. The husband promised to give her half of the stated value. There is no evidence that he has failed to grant her that amount, as the account remains undistributed. If the husband depletes his share of the account, he still remains liable to pay the wife her share and there is no evidence that he will not do so. Even if he used his share of the funds to pay for his girlfriend — or any other non-marital reason — his liability to his wife for her half-share of the agreed value remains unchanged.

The husband - without contradiction from the wife — alleges that the money was taken from a second account, which included only his separate funds. The husband alleges, and the wife acknowledges, that after the agreement was signed, he sent substantial financial records to her attorney regarding the separate fund account. Importantly, the wife never disputes, that after her counsel reviewed the statements from the husband, the funds used to pay the girlfriend's expenses were made from the husband's non-marital accounts. The wife speculates that the funds could not be separate funds, but she does not produce any evidence to rebut the husband's assertion. There is no evidence before this court to contradict the husband's assertions that any payments were made from his separate funds. Based on the proof before this court, there is no evidence that these allegations constitute fraud or deceit by the husband.

8.General allegations of fraud.

The wife also alleges a series of actions by the husband that, in her judgment, qualify as fraud or deceit. She alleges that the husband threatened to leave the collaborative process, that he made derogatory comments during collaborative meetings (with her attorney present), and that the collaborative process should have been terminated by her professionals (even though she never says that she wanted to terminate the process). This court notes that the wife, while focusing her claim on the failure to provide financial disclosure, also claims that her husband threatened her during the collaborative process, took a strident position in the visitation with the couple's unemancipated daughter (in March 2009), and describes the "whole process as out of control" (in May 2010). The wife alleges that she was told by her attorney that collaboration was better than court resolution and that her husband continued to "push" the matter to a separation agreement. She claims that the husband threatened to "leave collaborative."

These allegations simply are not coercion or fraud. Lefkowitz v. Lefkowitz, 276 AD2d 598 (2nd Dep't 2000); Cavalli v. Cavalli, 226 AD2d 666 (2nd Dep't 1996). Faced with these claimed violations of the agreement, the wife had the clear option to discontinue the collaborative process, but did not do so. This court notes that often during negotiations prior to execution of a settlement agreement, the parties can be hostile and make hostile remarks. However, these passions pass and the parties reach an agreement. This court finds it difficult to credit the claims that the process was "out of control" in May 2010 when the wife - assisted by her counsel - signed a separation agreement less than a month later in June 2010. [*15]

The wife contends that the health insurance provision is illusory, but there is no evidence that the wife has never been denied coverage through the husband's family business and the agreement provides that husband must "take all steps necessary to assure continued coverage and eligibility." The coverage requirements — at least in first review of the document — require lifetime health insurance coverage. It seems inconceivable that the wife will not be an employee of an entity that provides health insurance in the future and the husband clearly has an obligation to make that happen. It hardly seems illusory.9.Modification of Child Support.

The wife alleges that the husband's child support calculation and payments should be modified because the agreement is invalid. However, if the agreement is valid, the child support calculation, albeit a deviation from the requirements of Child Support Standards Act, was nonetheless accepted by all parties when they signed the agreement. The couple agreed that the reasonable needs of the child would be met by the support set forth in the agreement. The husband also provides health insurance for the unemancipated daughter at no cost to the wife. There is no evidence of a substantial change in circumstances sufficient to modify the support set forth in the agreement.

The husband and wife in this case engaged in a lengthy and often difficult collaborative law process. They had every required professional — skilled attorneys, a financial expert, and access to accountants who knew the marital properties. After nearly a year of negotiation they reached an agreement, resolving the issues from their marriage. They transferred an extremely valuable property to their children, setting up an annual income stream to benefit them both, they divided a multi-million dollar joint account, and they split the real property and investment assets. The husband agreed to pay significant maintenance and provide lifelong health insurance. The wife has substantial annual income to live a fine life.

This court declines to overturn their efforts and their final product. There is no evidence of fraud or overreaching. The fact that the wife claims the husband did not act consistent with the objectives of the collaborative law process does not give rise to the conclusion that he has overreached. If the wife felt he did that, she had an easy remedy — end the collaborative process and bring the matter to the courts. She chose not to do that and instead, at the conclusion of the collaborative process, and with her seasoned and skilled attorney as counsel, signed an agreement that is fair and reasonable.

The wife's cross-motion to vacate the agreement is denied. The husband's motion for summary judgment for a divorce under Section 170 (7) of the Domestic Relations Law is granted and judgment will be entered accordingly.

DATED:February 22, 2012________________________________

Hon. Richard A. Dollinger, A.S.C.J. [*16]