Speaker 1: This is Bloomberg Law with June Bresso from Bloomberg Radio.
Speaker 1: An underground market has emerged since the Biden administration announced
Speaker 1: it would accept thirty thou immigrants each month, arriving by
Speaker 1: air from Venezuela, Cuba, Nicaragua, and Haiti. Applicants for that
Speaker 1: humanitarian parole program needs someone in the US to promise
Speaker 1: to provide financial support for at least two years. Off
Speaker 1: in that person is a friend or relative. But what
Speaker 1: happens if a migrant doesn't have that friend or relative
Speaker 1: to promise financial support. Facebook groups with names like Sponsors
Speaker 1: US carried dozens of posts offering financial supporters, some demanding
Speaker 1: up to ten thousand dollars. According to the Associated Press,
Speaker 1: US Citizenship and Immigration Services warns about potential scams with
Speaker 1: the humanitarian parole program, but there's no indication that applications
Speaker 1: have been rejected because of concerns that potential sponsors might
Speaker 1: be requesting money joining these. Immigration law expert Leon Fresco,
Speaker 1: a partner at Holland to Night, Leon explain what's happening here,
Speaker 1: So here's what this situation is. Ever since the Russian
Speaker 1: invasion of Ukraine, the Biden administration has responded to various
Speaker 1: events around the world with a new concept calls allowing
Speaker 1: people to be paroled into the United States. They basically
Speaker 1: created this bifurcated process whereby an American could actually come
Speaker 1: forward and step up to the plate and say, you
Speaker 1: know what, I'm going to take the financial responsibility responsoring
Speaker 1: a particular foreign nationals. And then if that person gets
Speaker 1: vetted and it is used to have sufficient assets to
Speaker 1: do that, that that too happens. And then the foreign
Speaker 1: national comes forward and declares they're desired to want to
Speaker 1: be paroled and to essentially be within the offices of
Speaker 1: this foreign national and assuming those backgrounds checks clear, then
Speaker 1: the person can actually be paroled into the United States.
Speaker 1: And what a parole is is it's basically a permission
Speaker 1: document that says for a year, you have legal status
Speaker 1: in America, but at any point we can kick you
Speaker 1: out within the year if we revoke your parole. And
Speaker 1: within that year, you're gonna have to figure out what
Speaker 1: you want to do. Do you want to apply for asylum,
Speaker 1: do you want to do something? You know us, but
Speaker 1: you get to come in for a year and figure
Speaker 1: out what your plan is. And so what has happened
Speaker 1: is there are obviously many more people who demands to
Speaker 1: come into the United States, then there are a supply
Speaker 1: of individuals who are willing to actually and legitimately come
Speaker 1: forward and sponsor people financially for these parole documents. And so,
Speaker 1: like anything, nature of horrors a vacuums, and where people
Speaker 1: can find a way to make money, they do. And
Speaker 1: so people have decided, well, what if we were to
Speaker 1: sell sponsorship to some of these foreign nationals so they
Speaker 1: can pay to have people sponsor them. And so the government,
Speaker 1: having found out that this is now happening through various
Speaker 1: vomitoring of social media and talking to people and doing
Speaker 1: intelligence work, is trying to figure out, well, given the
Speaker 1: fact that we kind of made this program up in
Speaker 1: the fly and didn't actually say or figure out a
Speaker 1: way where this would be illegal, what are we to
Speaker 1: do now? Is this something we will allow to happen?
Speaker 1: Do we have to do something to not permit it
Speaker 1: to happen? And the government has sort of caught betwixt
Speaker 1: them between there because it seems odd. So you're paying someone,
Speaker 1: let's say, ten dollars for a promise to provide financial support,
Speaker 1: is that a real promise. Are they going to be
Speaker 1: providing the financial backup that the government is looking for.
Speaker 1: I mean, it's absolutely against for sure the spirit of
Speaker 1: the program. I think the question is what does sponsorship
Speaker 1: mean in this context. What I mean by that is
Speaker 1: to say, this process generates itself from something that happened
Speaker 1: in where the government was concerned about marriage fraud and
Speaker 1: what it said was, We're not just gonna let anybody
Speaker 1: marry a US citizens that U S citizens who marries
Speaker 1: a foreign national has to make a sufficient amount of
Speaker 1: income and actually say, if my wife, for my husband,
Speaker 1: whoever the spouse is, that the four nationals ends up
Speaker 1: using any government resources, then I agreed to be on
Speaker 1: the hook for paying those government resources. The government can't
Speaker 1: come in and have to sponsor my spouse for me.
Speaker 1: I have to do this. And so that's where the
Speaker 1: concept is based off of. And although that concept is
Speaker 1: very very very rarely enforced. The Trump administration was about
Speaker 1: to start doing that near the end of the first
Speaker 1: term of the Trump administration, to start coming after people
Speaker 1: and asking for money to be paid. It hadn't really
Speaker 1: been done since now this new program is sort of
Speaker 1: mimicking that but doesn't have the same statutory guideline, because
Speaker 1: that's part of the affidavit of sport was a statutory
Speaker 1: thing for that marriage issue. And so the question is
Speaker 1: if you're doing something that's not even a regulation, because
Speaker 1: this is all memo. Bay if you're basically writing a
Speaker 1: memo creating a parole program and creating the sponsorship requirement,
Speaker 1: does the government have any teeth to whatsoever to punish
Speaker 1: someone who's being a sponsor just because they're being paid
Speaker 1: to be a sponsor. And so that's the problem that
Speaker 1: the government has encountered. So it seems like there's a
Speaker 1: real possibility that fraud is involved. When they're filling out
Speaker 1: the forms and making these promises, they had to say
Speaker 1: what the relation is to the person? Right right? I mean,
Speaker 1: for sure, there's definitely if you commit fraud on the
Speaker 1: form if you say that you intend the papers for
Speaker 1: benefits of money if they don't actually do it, or
Speaker 1: if you say you're they're relative and you're not actually
Speaker 1: they're relative, or if you declare that you're doing this
Speaker 1: and good faith and you haven't been paid for it,
Speaker 1: which I think they're going to try to amend the
Speaker 1: form to do that that you can for sure, charge
Speaker 1: the person for fraud there, but it's something that I
Speaker 1: think they didn't even think about at the beginning, that
Speaker 1: this could be something that would happen. And of course,
Speaker 1: you always when you do one of these programs, have
Speaker 1: to be worried that bad actors will try to manipulate it,
Speaker 1: because that's been the history of any immigration programs of
Speaker 1: the United States. You've often said that most of the
Speaker 1: people who are coming here have someone that they're you know,
Speaker 1: intend to go to relative shouldn't most of these, you know,
Speaker 1: the Cubans and Nicaraguans and the Venezuelans have people here
Speaker 1: who could vouch for them this way, Oh agree. So
Speaker 1: for the people who would normally have used this program,
Speaker 1: there was not a problem at all finding a sponsor.
Speaker 1: And fact there are many many more people who have
Speaker 1: sponsors than there are going to be plots for these
Speaker 1: thirty six thousand visas a month. The point is, though,
Speaker 1: there are many people who don't know anybody, and now
Speaker 1: those people are being told, well, here's a way for
Speaker 1: you to know somebody. But what what is happening is
Speaker 1: not that there's an insufficient number of people who have sponsors.
Speaker 1: What's happening is that not every single person in that
Speaker 1: country has a sponsor, but by buying a sponsor you
Speaker 1: now open up the possibility of being sponsored to even
Speaker 1: more people than could have otherwise had that possibility. So
Speaker 1: these are people who would never have come but now
Speaker 1: might come because they can acquire a sponsor. I want
Speaker 1: to turn down to this case that's before the Supreme
Speaker 1: Court in two thousand three, sit to Wilkinson fled government
Speaker 1: persecution in his native Trinidad and Tobega for the United
Speaker 1: States on a tourist visa. He overstayed the visa and
Speaker 1: had a son who's a US citizen and who's regularly
Speaker 1: hospitalized due to severe asthma tax and when the government
Speaker 1: moved to deport him, Wilkinson asked for what's called cancelation
Speaker 1: of removal, arguing that his son and the boy's mother
Speaker 1: need him because he's the family's soul breadwinner. The boy's
Speaker 1: mother suffers from depression and would be left unable to
Speaker 1: cope medically or financially without his support. And immigration judge
Speaker 1: denied his request, as did the Third Circuit, and he's
Speaker 1: asking the Supreme Court to look at his case. So
Speaker 1: explain the background here whenever a don citizen goes through
Speaker 1: the removal process, if they have a claim that the
Speaker 1: Immigration Court and or the Board of Immigration Appeals applied
Speaker 1: the wrong laws their case, or incorrectly decided the law,
Speaker 1: or incorrectly did something that violated the constitution, those claims
Speaker 1: of law can be appealed to the courts of appeal.
Speaker 1: What can't be appealed are factual determinations. There's a small
Speaker 1: exception for factual determinations and asylum cases, but mostly factual
Speaker 1: determinations cannot be appealed. Now, three years ago, there was
Speaker 1: a decision in the Supreme Court that talked about these
Speaker 1: waivers of deportation, which is what happens is sometimes a
Speaker 1: deportation order has entered against you, but you can actually
Speaker 1: get a waiver where the judge says, Okay, I know
Speaker 1: we can deport you, but we will waive this deportation
Speaker 1: because you qualify. As a matter of discretion, you qualify
Speaker 1: for this waiver and so I'll give it to you.
Speaker 1: So you get to say. And what the court said
Speaker 1: is if something is an issue of mixed questions of
Speaker 1: facts and law, then they can review it. So now
Speaker 1: in this upcoming case that people are asking for review
Speaker 1: in the Supreme Court. What happens is the following. There's
Speaker 1: about four thousands plots a year for this type of
Speaker 1: relief called cancelation of removal. And what it is is
Speaker 1: if you're here without any status at all period and
Speaker 1: the government is trying to deport you, you can actually
Speaker 1: avoid deportation if you can prove that you've been here
Speaker 1: for over ten years. That's the first key thing, and
Speaker 1: secondly that your deportation is going to be causing. And
Speaker 1: it's a very difficult standard to meet. An exceptional and
Speaker 1: extremely unusual hardship to a U. S. Citizen is usually
Speaker 1: a US citizen child, but it can also be a U. S.
Speaker 1: Citizen spoused. And if you could prove that, then you
Speaker 1: could be allowed to say and actually get lawful permanent residency.
Speaker 1: So the question in this case was that the court
Speaker 1: felt that the amount of hardship that the person showed
Speaker 1: was not sufficient to meet this exceptional and extremely unusual
Speaker 1: heart of standard. We would all agree if the court
Speaker 1: got the facts wrong in this kind of question, you
Speaker 1: couldn't review that. You know, if the court thought, let's
Speaker 1: say they say this person didn't do anything for the community,
Speaker 1: and the person said, well, I had evidence that I
Speaker 1: volunteered in my church, so you should have put that
Speaker 1: in there and waited as a discretionary thing. That kind
Speaker 1: of thing wouldn't be able to be reviewed. But the
Speaker 1: question is if everybody agrees on the fact, can you
Speaker 1: then make a determination that could be reviewed about whether
Speaker 1: those facts were sufficient to me this exceptional and extremely
Speaker 1: unusual hardship standard or is that just for the judge
Speaker 1: to decide and that can't get reviewed, And so that's
Speaker 1: what's going to be potentially pizzing into the Supreme Court.
Speaker 1: So you know, a lot of people who have been
Speaker 1: here for a decade have children who are US citizens,
Speaker 1: and so it's not enough to say, well, I have
Speaker 1: three children who are US citizens and they're gonna miss
Speaker 1: me and it's gonna be awful for them. Correct, that's
Speaker 1: considered normal hardship. There's actually a famous Board of Immigration
Speaker 1: Appeals case called matter of Restina's and in that case,
Speaker 1: the person had something like three or four U. S
Speaker 1: citizens children, one with a severe mental illness, another one
Speaker 1: with a severe medical problem. And then the problem was
Speaker 1: if this person was deported, then not only could those
Speaker 1: kids not be taken care of, but she also had
Speaker 1: parents here in the United States and siblings, and the
Speaker 1: court said, when we put all of this stuff together,
Speaker 1: you barely make it. And so they didn't say, Okay,
Speaker 1: this is a slam dunk. And that was a case
Speaker 1: for where an immigration just said no, and then the
Speaker 1: Board of Immigration Appeal said, yeah, you you make it,
Speaker 1: but you barely make it. And so that was the
Speaker 1: kind of thing that was considered exceptional as extremely unusual hardship.
Speaker 1: And so that's the question here is does the person
Speaker 1: in this case meet that standard? And you know, to
Speaker 1: show it, you have to basically show serious medical issues
Speaker 1: or something of that kind that the U s it
Speaker 1: is in relative has that requires not only them to
Speaker 1: stay here, but perhaps you more importantly to stay here
Speaker 1: so you can give them the care they need or
Speaker 1: pay for the care that they need. And that's the
Speaker 1: kind of thing that's being talked about here. So here,
Speaker 1: I think that the sun has asthma and the mother
Speaker 1: is depressed, so she can't take care of him or
Speaker 1: support him financially. So now in this case, the immigration
Speaker 1: judge said no, did the Board of Immigration take a
Speaker 1: look at it? Yes, So in every case, both have
Speaker 1: to look at it, the immigration judge and the Board
Speaker 1: of Immigration Appeals, and the decision actually always gets appealed
Speaker 1: from the Board of Immigration Appeals. But what happens is
Speaker 1: the Board of Immigration Appeals often like here, acts like
Speaker 1: a rubber stamp, so they don't actually issue anything more.
Speaker 1: So that's why people say Board of Immigration a peals,
Speaker 1: But sometimes it's actually the immigration judge who they make
Speaker 1: the decision, and the Board of Immigration Appeal just as affirmed,
Speaker 1: and so then that decision gets appealed to the Court
Speaker 1: of Appeals. And so exactly like you said, this case
Speaker 1: here was the one where the child has as mine.
Speaker 1: They said that, you know, without some mother they wouldn't
Speaker 1: be able to betically or financially provide for this child
Speaker 1: who has asked not tax. And they viewed that as hardship,
Speaker 1: but again not exceptional and extremely unusual hardship. And so
Speaker 1: that's the question. And you know, this is like a
Speaker 1: perfect gray area type of case where if you get
Speaker 1: a very sympathetic judge they might approve it. But if
Speaker 1: you're get a judge that doesn't want to approve any
Speaker 1: of these, then they wouldn't approve this. And the question
Speaker 1: is can you set a standard for a case like
Speaker 1: this or is this really just up to the judge?
Speaker 1: And I think that's what the Supreme Court is going
Speaker 1: to be grappling with. Are the circuits split on this? Yes? Correct,
Speaker 1: the circuits are split on this. And so there are
Speaker 1: some circuits like the Ninth Circuit who says, yes, this
Speaker 1: can be reviewed because this is actually not a discretionary determination.
Speaker 1: This is a legal determination as to whether a specific
Speaker 1: agreed upon that a fact meets the legal standard of
Speaker 1: exceptional and extremely unusual art chip. But the Third Circuit says, no,
Speaker 1: this is not a legal question. This is a discretionary question,
Speaker 1: basically saying have you sufficiently tugged at the discretionary heart
Speaker 1: strings of the judge who get the relief? And so
Speaker 1: it'll be interesting to see what the Supreme Court thinks
Speaker 1: about this. Yet another case that now the Ninth Circuit
Speaker 1: is going to hear on banks over temporary protected status
Speaker 1: and so Trump pullback protections from migrants m L. Salvador, Haiti, Nicaragua,
Speaker 1: Sudan and also Nepal and Honduras, and the Biden administration
Speaker 1: has redesignated Haiti and Sudan for TPS. Status. Isn't that
Speaker 1: the Biden administration's decision whether or not there should be
Speaker 1: a TPS status for a country. I mean, why is
Speaker 1: this correct? Interestingly, this lawsuit started in the Trump administration
Speaker 1: when Trump tried to say, look, there's a lot of
Speaker 1: countries where their nationals were given temporary protective status for
Speaker 1: disasters that happened in the nineties, and so why here
Speaker 1: in the second part of the twenty one century are
Speaker 1: people still to stay on the basis of a disaster
Speaker 1: that was supposed to temporarily affect them in And so
Speaker 1: there was this lawsuit saying, yeah, but what you did
Speaker 1: was you were acting in a discriminatory manner that violated
Speaker 1: equal Protection clause, and you also violated the Administrative Procedure
Speaker 1: Act by not explaining the current conditions in the country
Speaker 1: and how those conditions have been effected since that mentor
Speaker 1: of disaster. And so all of this was in litigation,
Speaker 1: and then the Trump administration leeds and the Biden administration
Speaker 1: to come fact and oddly enough, as you point out,
Speaker 1: the Buiding administration doesn't continue the temporary protective status for
Speaker 1: some of these countries, and it actually continues to choose
Speaker 1: to litigate this issue, and so now this issue where
Speaker 1: the applicants had actually lost in the Ninth circuits, they
Speaker 1: are actually now getting a full on bond, meaning well
Speaker 1: that's the full Courtcuse in the ninth circuits there's so
Speaker 1: many judges. You get twelve judges, which is considered the
Speaker 1: full court. You get you get an on bank panel
Speaker 1: of well twelve judges. But but those judges are now
Speaker 1: going to consider what will be done? Could you an
Speaker 1: temporary protective states? That way, it affects the question if
Speaker 1: the government wins and wins all of the lawsuits, will
Speaker 1: the Biden administration simply find a different route to protect
Speaker 1: these people's fighting effects? Now, because I think what they've
Speaker 1: had a problem with, at least justifying this intellectually is
Speaker 1: I think they too think that there's a complication with
Speaker 1: saying that the conditions justify extensions of EPs. I think
Speaker 1: they think when that was sort of being done on
Speaker 1: an automated basis every eighteen months, that was one thing.
Speaker 1: But once an actual Department of Homeland Security, even if
Speaker 1: it was President Trump's department, it doesn't matter, went through
Speaker 1: the facts and said, look, we need to break this
Speaker 1: chain of causation. When they feel like it's true, there's
Speaker 1: not a natural disaster from to justify this continuous of
Speaker 1: PPS anymore. And so it will be interesting to see
Speaker 1: what happens after all of this is over. Do they
Speaker 1: cite some new reason that's more current to protect these
Speaker 1: people under temporary protective status or does that end up
Speaker 1: falling away yet again, That's going to be very interesting
Speaker 1: to see after this litigation is all over. It's supposed
Speaker 1: to be temporary, So why continue to protect people if
Speaker 1: you know the reason for protecting them is gone. That's
Speaker 1: sort of belies the whole the whole PILM. There was
Speaker 1: a bit of inertia that happened here where when the
Speaker 1: first happened in there were these earthquakes and hurricanes and
Speaker 1: things for these countries from Central America, you know. So
Speaker 1: there was eighteen months and then there was another eighteen months,
Speaker 1: and people sort of understood those first thirty six months,
Speaker 1: and then for the next eighteen months people said, well,
Speaker 1: maybe we need this last eighteen months. And then once
Speaker 1: you got past those eighteen months, then it was well,
Speaker 1: people have already been here for five years, six years,
Speaker 1: they've had U S citizen kids. Now you're going to
Speaker 1: deport them. What a creation of a tragedy you're doing.
Speaker 1: And so then that was the argument, and that sort
Speaker 1: of was inertia upon inertia upon inertia, and you ended
Speaker 1: up with this situation where you couldn't emotionally justify kicking
Speaker 1: people out who's now been here twenty five years. And
Speaker 1: so that's why Congress has these bills to try to
Speaker 1: get these folks green cards, but they have not passed.
Speaker 1: And so we are where we are, which is that
Speaker 1: the real purpose of the statute, which is to give
Speaker 1: temporary relief very difficult to argue that disaster is still
Speaker 1: the basis for someone saying in America, and so the
Speaker 1: question is what do you do that? So you know,
Speaker 1: every week there's another immigration problem, more policy that there's
Speaker 1: news on. So I guess it doesn't come as much
Speaker 1: as a surprise that a new Gallipo that was released
Speaker 1: today revealed that Americans are more dissatisfied with immigration into
Speaker 1: the country than they've been in years. Sixtent of respondents
Speaker 1: are dissatisfied with US immigration overall, and that's the lowest
Speaker 1: reading in a decade, and most say that they want
Speaker 1: immigration decreased. I wonder if a lot of this is
Speaker 1: because of the bussing of migrants from Texas has led
Speaker 1: to people in different parts of the country, you know,
Speaker 1: being exposed to the problems of placing migrants. I think
Speaker 1: this is all part of it. I think really what
Speaker 1: anything comes down to with regard to immigration law, or
Speaker 1: immigration policy or immigration acceptance by the populace in the
Speaker 1: United States is the following people of r A VACU.
Speaker 1: And so what happens is right now the only people
Speaker 1: talking about immigration are people pointing out that there's a
Speaker 1: problem with the immigration system. So Biden administration doesn't want
Speaker 1: to spend any time talking about immigration. In fact, in
Speaker 1: the State of the Union, they may have mentioned it
Speaker 1: for thirty seconds. If they mentioned it for thirty seconds,
Speaker 1: it was too long. And what really comes down to
Speaker 1: is this, whether you set the level at a high level,
Speaker 1: or you set the level at a low level, or
Speaker 1: you set the level at a medium level, what the
Speaker 1: American people want is a strategy of explanation and a
Speaker 1: feeling that it's not out of control. And that's the
Speaker 1: key for the Biden administration is to explain to people
Speaker 1: why the system is the way it is, why it's
Speaker 1: not out of control to the extent that they can
Speaker 1: explain that what their plan is to get it further
Speaker 1: under control, and why the system and the decisions they're making.
Speaker 1: This is the key part actually advanced the interests of
Speaker 1: America and American because a lot of the rhetoric for
Speaker 1: better and for worse for both because I think it's
Speaker 1: helpful and it's good to be compassionate to the people
Speaker 1: trying to flee a lot of terrible conditions in their
Speaker 1: home countries. But a lot of the rhetoric you hear
Speaker 1: from immigration advocate and from some people in the Democratic
Speaker 1: Party is a rhetoric that centered on the interests of
Speaker 1: the foreign national entering the United States and the problems
Speaker 1: they're suffering. And while that's understandable and sympathetic, you have
Speaker 1: to if you're going to sell a system and a
Speaker 1: and a series of decisions, selling on why that decision
Speaker 1: and that system is good for America and the national
Speaker 1: interest of nine States. And that's where the Republicans have
Speaker 1: made very good head road in talking about immigration in
Speaker 1: that way. They constantly use this phrase the national interest,
Speaker 1: and they constantly say that only low levels of immigration
Speaker 1: are good for the national interests of Americans. But because
Speaker 1: they're the only people making this argument, then that's what's
Speaker 1: going to be assumed, because nobody's making an argument about
Speaker 1: why moderate levels or higher levels are better for the
Speaker 1: American interest And so that's why you see this disconnect
Speaker 1: where more and more and more people continued to say
Speaker 1: on a higher and higher level that low immigration is
Speaker 1: good for America's national interests and that the current system
Speaker 1: is out of control. So the problem really is moving forward,
Speaker 1: can to buy the administration explain what it's doing, articulate
Speaker 1: a vision, articulate a system, and explain why that system
Speaker 1: and that vision is in the interests of America and
Speaker 1: Americans well. And also, immigration satisfaction was highest during the
Speaker 1: early part of former President Trump's term. So this is
Speaker 1: something that the Biden administration is going to have to
Speaker 1: answer when it comes time for the elections. Correct, That's
Speaker 1: the point, and the key thing is if you look
Speaker 1: at our president Trump changed the conversation on immigration. It
Speaker 1: wasn't just that he lowered the levels of immigration. People
Speaker 1: are not so sensitive to the numbers being high or low.
Speaker 1: People are sensitive to the discussion that the immigration system
Speaker 1: is being tailored to the national interests of the United States,
Speaker 1: and that was constantly a praise that he used, and
Speaker 1: he constantly tried to explain at least his vision of immigration,
Speaker 1: which was that the less immigration that there was, the
Speaker 1: more that was in America's interest. Thanks so much, Leon,
Speaker 1: you always have the answers, and it's a pleasure to
Speaker 1: have you on the show. That's Leon Fresco of Hondon Knight,
Speaker 1: the wife of billionaire Israel is he in Lander, filed
Speaker 1: an explosive lawsuit against the Millennial Management chairman and then
Speaker 1: withdrew it the day after. In the suit, Carol Englander
Speaker 1: claimed that her husband of forty eight years conducted a
Speaker 1: year's long campaign of pressure and coercion against her and
Speaker 1: her girlfriend, having them followed nearly constantly, hacking their emails
Speaker 1: and phones and interfering with their family lives in order
Speaker 1: to get her to sign a post nuptial Agreementzzy Englander
Speaker 1: has a net worth of eleven point five billion dollars
Speaker 1: according to the Bloomberg Billionaires Index, and his a strange
Speaker 1: wife says he got more than of the value of
Speaker 1: their marital assets in the post nup. On Friday, Carol
Speaker 1: Englander dropped the suit, which was filed by her and
Speaker 1: her girlfriend, Swiss art dealer Dominique Levy, a spokesperson for
Speaker 1: england Or, said it was dropped in an effort to
Speaker 1: resolve this as a family matter. Joining me is Peter Walser,
Speaker 1: the founding partner of Walzer, Melcher and Yoda and L,
Speaker 1: a family law firm. So Carol Englander is claiming that
Speaker 1: she signed the post up under darrest. Tell us a
Speaker 1: little about her allegations. Well, it sounded like what we
Speaker 1: would call corrosive control, in other words, a pattern of
Speaker 1: stocking rating, threatenings for having a relationship with her friend Dominique.
Speaker 1: And it sounded like, according to Carol, there was a
Speaker 1: lot of pressure on her and it was a very
Speaker 1: unpleasant situation I imagined for all of them after a
Speaker 1: very long marriage, almost fifty years. Do you know if
Speaker 1: there was a pre nuptial agreement in this case, I
Speaker 1: don't know, and there's been no report of that, so
Speaker 1: one would think, considering the length of the marriage, probably
Speaker 1: no premierital agreement. He allegedly got her to sign an
Speaker 1: agreement before they divorced. Well, I don't know that they're
Speaker 1: even divorced. There's no indication that they actually got divorced.
Speaker 1: Tell me about postnups in general. Do a lot of
Speaker 1: couples have postnups? Is it unusual? I mean, I've been
Speaker 1: doing this over forty years and I've done literally hundreds
Speaker 1: of we call them premyoral agreements, and I've done probably
Speaker 1: five to ten post marrow agreements that actually got signed. Now,
Speaker 1: people come in and they want them, but they often
Speaker 1: lead to a divorce. Basically, they're harder than pups, and
Speaker 1: the standards are a lot different than prenups. What are
Speaker 1: the standards? For example? For prenups, no consideration is required.
Speaker 1: Consideration means something barred in for an exchange, or if
Speaker 1: you give me this, I'll give you that, Whereas in
Speaker 1: a post marital agreement there is a requirement of consideration.
Speaker 1: Somebody's got to get something for what they're giving up.
Speaker 1: And in this case, if Carol was giving up half
Speaker 1: the marital of state, which could be five billion dollars,
Speaker 1: she would have to get something in exchange for that.
Speaker 1: It doesn't have to be equal, but there has to
Speaker 1: be consideration for it. Next. Whereas people in a premarital
Speaker 1: agreement do not have a fiduciary duty to one another
Speaker 1: in a post marital agreement, they have a fiduciary duty,
Speaker 1: which means a lot stronger scrutiny of the agreement for
Speaker 1: fairness and so on. So in addition, in a premarial agreement,
Speaker 1: you can waive the disclosure beyond what's provided, but in
Speaker 1: a postmarril agreement, you can't wait for disclosure. There's got
Speaker 1: to be a full disclosure to both people signing the agreement.
Speaker 1: In this case, she claims that he didn't disclose the
Speaker 1: extent of their marrit assets. Right, she made all the
Speaker 1: necessary claims to arrests, perhaps fod all those required claims.
Speaker 1: But the problem with that is we don't know the details.
Speaker 1: But you can imagine she had an attorney review it.
Speaker 1: She signed the agreement. The agreement, like most agreements between
Speaker 1: spouse's state, there was no arrest, there was no fraud,
Speaker 1: she had adequate time to review the agreement and so
Speaker 1: on and so forth. So once she does that and
Speaker 1: the agreements notarized, it's hard to say that you didn't
Speaker 1: know what you were doing or you were pressured. In
Speaker 1: the same day, it's different. Occasionally, at these agreements, the
Speaker 1: spouses signed between each other on a piece of paper
Speaker 1: that's not what we're talking about. We're talking about wealthy
Speaker 1: people who how attorneys who reviewed it, who made a decision.
Speaker 1: She says that he got most of the marital assets,
Speaker 1: but he's worth eleven and a half billion, and if
Speaker 1: she got five percent, that's still a lot of money
Speaker 1: to most people. I was doing the numbers like that too,
Speaker 1: and I thought that's not bad. I think I could
Speaker 1: live on I don't know. I don't know. I might
Speaker 1: have to, you know, budget on the food, but otherwise
Speaker 1: i'd be fought. Let's just say that this goes forward.
Speaker 1: How would a judge decide whether or not there was dressed,
Speaker 1: whether or not this pass the test for a post up. Well,
Speaker 1: there's a great New York case called Hershkowitz versus Levy.
Speaker 1: You could google and it lays out the anderds. And
Speaker 1: in this twenty twenty one case, which is recent in
Speaker 1: terms of the law, talks about a post that between
Speaker 1: a self represented attorney and his wife and they agreed
Speaker 1: that after a few thousand and thirteen everything they had
Speaker 1: would be separate. And then the kidson comes along in
Speaker 1: trying to set aside the post marital agreement. I guess
Speaker 1: wife did better than him in the marriage, and he
Speaker 1: said it was unconscionable, and there was the rest, and
Speaker 1: she didn't give him enough time to sign it. And
Speaker 1: it really lays out the law for post marital agreements,
Speaker 1: and the case says an agreement between spouses which spare
Speaker 1: on its base will be enforced according to its terms
Speaker 1: unless there's proof of unconscionability or fraud. The less overreaching
Speaker 1: or other duct. Unconsciouent ability means shocking for the conscious.
Speaker 1: It's just not unfair. So New York's really laid out
Speaker 1: the law for post ups in a nice way in
Speaker 1: this case. So the person trying to set it aside
Speaker 1: initially has the burden to show it was unfair. So
Speaker 1: now we find out that just a day after filing
Speaker 1: this she withdrew it. So what do you make of that. Well,
Speaker 1: when there's not much of money, a deal could always
Speaker 1: be struck. It's not like money is the issues. And
Speaker 1: she probably didn't have much of a case except bad publicity.
Speaker 1: When you're in your seventies, you probably don't need bad publicity.
Speaker 1: And either of them dead, and so a deal could
Speaker 1: be struck. Now we don't know if a deal was struck,
Speaker 1: but somebody said, hey, let's let's talk about it. We
Speaker 1: could work something out with that kind of money. You know,
Speaker 1: maybe else you wanted was another half billion powers, you know,
Speaker 1: I mean, really, you've got to look what causes these
Speaker 1: losses between anybody, but especially well the People's not the money.
Speaker 1: It's hurt feelings, it's anger, it's resentment. And if people
Speaker 1: can sit down and talk, they can make a deal. Now,
Speaker 1: she made a deal already, but she obviously wanted more,
Speaker 1: and he has more to give. What's he going to
Speaker 1: do with it? You know, that kind of money, it's
Speaker 1: not gonna make anybody's life different. Now, she could have
Speaker 1: reacted differently and been angry and said, it's a matter
Speaker 1: of principle, I'm not going to talk to you if
Speaker 1: ever again, I'll see you in court. But that's time consuming,
Speaker 1: and even though expense is not an issue, it's expensive.
Speaker 1: But mainly it's aggravating, emotionally disturbing. So at their age,
Speaker 1: both in the need that kind of straps. So they
Speaker 1: did the smart thing, you know, with and workout a deal.
Speaker 1: Thanks so much, Peter. That's Peter Walser of Walls or
Speaker 1: Melcher and yodah. And that's it for this edition of
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