Family Case (Tel Aviv) 31661-07-16 Anonymous v. Anonymous - part 4

The Man:         False" (See transcript of November 18, 2020, p.  653, paras.  8-11, emphases not original).

When the man was presented with his interrogation in a court in the United States, in which he was asked the exact same question (see the transcript of the interrogation in Appendix 4 to the woman's summaries), it was revealed that the man had lied in his interrogation to me:

"Q:             Now you mentioned earlier that you yourself personally participated in a BLIPS transaction.  What year was that, sir?

A:               2000.

Q:               And can you remember if you remember, how much income you were sheltering with your own BLIPS transaction?

A:               Around $60 Million in income I was sheltering".

32. As mentioned, this is only an appetizer that, as I will show below, testifies to the entire meal.

C.2 - The law that applies in the circumstances of the case:

33. Before I turn to the discussion of the specific property issues, we must discuss the appropriate procedural framework for the parties before me who disagree on the question of the law applicable to them. In this matter, the parties have spoken extensively to the extent that as the phrase "because of the many trees you do not see the forest" for our purposes, we do not see the matter that is being clarified.  And what is this supposed to say?
34. First, according to the law, the list of companies under discussion is formatted in the pleadings submitted by the parties. Therefore, an argument raised by a party that was not raised in the first place in his pleadings constitutes a "change of façade" or an "expansion of the façade", and must be rejected (see, for example: Civil Appeal 441/88 Yarchi v.  Goldgarber, IsrSC 34(4) 378, 348 (1989); Civil Appeal 6799/02 Yulzari v.  United Mizrahi Bank Ltd., IsrSC 58(2) 145 (2003); Civil Appeal 759/76 Paz v.  Neumann, IsrSC 31(2) 169 (1977)).
35. From the general to the individual;
36. In the statement of claim, the woman claimed that the applicable law is Israeli law as reflected in the Property Relations between Spouses Law, 5733-1973 (hereinafter: the Property Relations Law) and under the assumption underlying the presumption of equality of law and the Nafisi rule ("This claim was formulated under the assumption that underlies the presumption of equality of law and the Nafisi rule, but the plaintiff reserves all her rights in this matter"); ibid., at paragraph 115).
37. To this, the man replied in no less than 27 paragraphs in his statement of defense (paragraphs 61-87) that the law of the place of residence of the parties at the time of their marriage should be applied, i.e., the law of the state of New York in the United States. Thus, for example, it is written in paragraph 67 of his statement of defense: "In these circumstances, according to the private international law rule set forth in the Property Relations Law, the law that applies to the property matters of the parties is the substantive internal law of the State of New York, which is the law of the place of residence of the parties at the time of the marriage.  This law is different from the Israeli law that applies under the Property Relations between Persons and Persons Law, and the burden of proving the content of that foreign law rests on the plaintiff's shoulders.  However, the plaintiff did not even raise a claim regarding the content of the foreign law, and in any case her statement of claim lacks cause, since, as is well known, the foreign law is like a fact, and since the plaintiff did not make any factual claim regarding the content of the foreign law, her statement of claim does not reveal cause.  In these circumstances, the claim should be dismissed out of hand, due to lack of cause."
38. To complete the picture, it should be noted that the man did not claim in his statement of defense that any foreign law other than New York law applied.
39. During the investigation of the claim before me, both parties submitted an opinion to the State of New York. Notwithstanding the aforesaid, the man abandoned his claim for the application of New York law (see the words of the man's counsel for the minutes of the hearing of November 18, 2020, pp.  721, paras.  19-20), and especially see s.  440-458 for his summaries).  Thus, according to the man: "...  The plaintiff's attempt to change the front in her summaries should also be rejected out of hand, and it should be suddenly argued in her summaries that the law of Israel should be applied to our case...  It expressly sought to apply the law in Israel (i.e., the Property Relations Law).  Indeed, the defendant was of the opinion from the outset that in view of the place of residence of the couple at the time of the marriage, it is appropriate to apply the law in New York to the matter, but in view of the plaintiff's objection, this argument was in fact abandoned, while neither of the parties properly submitted an expert opinion regarding the personal law applicable in New York.  The plaintiff even explicitly stated in the hearing held on November 18, 2020...  for he waives this argument" (see paras.  440-442 for the man's summaries, emphasis added).
40. On the other hand, the woman in her summaries continued to argue that Israeli law applies to the financial relations between the parties, but further argued that even if we examine the law of the State of New York, the place of residence of the parties at the time of their marriage, the court can "draw or use relevant rulings that do not yet exist in the State of Israel regarding the point of meeting between the laws of trust and the laws of divorce when one party is trying to prevent the former spouse from having his share in the family property under the guise of the laws of trust" (see s. 272 of my summaries the woman).
41. Interim Summary -
42. In the main pleadings - the woman, the law of Israel; Man, the law of New York As for trusts, the laws of trusts must be applied in place of their establishment.
43. In summaries - the woman, the law of Israel and, alternatively, the law of New York (see section 272 of the woman's summaries); the man - not the law of New York, but to apply the laws of trusts to the trusts where they were established.
44. According to the woman, only after the man noticed that New York law supported her claims did he choose to make a "U-turn" and argue that New York law does not apply, but rather the law of trusts, as opposed to family law, instead of establishing it. There is no doubt that the man's conduct with regard to the determination of the law that will apply is conduct that is up to its neck in gross bad faith.  Unfortunately, this was the man's general conduct on all the levels that were involved in clarifying the claim and more on that later.
45. In practice, the law regarding the prenuptial relationship that must be applied is the law that the court will find preferable among all the options that were argued in the main pleadings, and of course in accordance with the abandonment of claims during the hearing and certainly in the parties' summaries. The only two options that can be applied to the financial relations between the parties in accordance with the main pleadings are the laws of the State of Israel or the laws of the State of New York.  We would like to remind those who have forgotten or wish to forget that the dispute before me is not between two corporations or two business entities that have entered into an agreement in any matter in a property outside of Israel, but rather between spouses whose dispute is entirely financial in accordance with the Property Relations Law and the choice of law in the law.
46. Therefore, I do not see any possibility, not even the slightest possibility, to apply to those trusts any law other than the laws of the financial relations of the State of Israel or the laws of the property relations of the State of New York. In order to illustrate the absurdity that arises from the man's claims that the rights of the parties in trusts should be determined in accordance with the law of the place where they were established, the following example will be presented:

Take the case that a couple marries in Israel and has property and money.  One of the parties takes funds and purchases a property in a fictional-land state, according to whose internal laws, the property is forever owned by the party who purchased it, and without taking into account the fact that the funds are joint and/or without taking into account the fact that the purchaser is married.  Now, is it possible that a court in Israel or in any other civilized country would have ruled that since the laws of a fictional-land state determine the ownership of the property in the name of the purchaser, it is not possible to include the value of the property in the framework of the balance of resources between the spouses in Israel? It is clear that the wise man does not need an answer.

45. From now on, it is not possible under any circumstances to apply the laws of the place of establishment of the trusts to the suit before me, both because the parties were not married there and the laws of that state do not apply to them (see and compare: section 15 of the law); both because the man claimed the application of the laws of the financial relations of the State of New York and because of the absurdity of applying a specific law to a single property and not to all of the parties' assets (see the example above).
46. I found that there is substance to the woman's claim that after the man understood that the laws of the State of New York were not good for him, he chose not only to abandon his claim of applicability of the law, but to argue the opposite of what he claimed in his statement of defense and to argue that the law of the State of New York should not be applied.
47. A further examination of the pleadings and the man's summaries will show that while the woman claimed the law of the State of Israel and the man claimed the law of the State of New York and now retracted it and strongly argues that the laws of the State of New York should not be applied, the woman's claim for the application of the law of the State of Israel should not be viewed as a claim that was not contradicted. Under these circumstances and under the outrageous conduct of the man, I found that the laws of the State of Israel should be applied to the financial relations of the parties, taking into account also the laws of the State of New York, and in the examination of the excess of necessity (more on this later).  It should be noted that the law does not prohibit parties from choosing which foreign or local law should be applied to the financial relations between them, and it is clear that the court will choose the choice of law taking into account the parties' arguments.  Let us recall once again that the man had reservations about the application of the law of the State of New York, which leaves us with the application of Israeli law.

C.3 - Property Issues:

48. Due to the complexity of the proceedings, the hearing of this judgment is divided into two questions that require my decision. First, I will discuss the question of whether the residence is part of the joint property of the parties or not.  Afterwards, I will discuss the total scope of the parties' joint property, with reference to other assets claimed by them, and the manner in which it is distributed.
49. At the outset, since the wife's claim deals with the balance of resources in accordance with the law, an arrangement that, as is well known, grants each party half of the property accumulated during the marriage, the bulk of the legal process is clarifying the scope and estimation of the rights and joint property. On the face of it, the woman is the plaintiff and therefore the burden of proving the scope of the parties' joint property (including proof that the residence is a part of it) rests at her doorstep, according to the guiding principle that the one who takes out from his friend has to prove it.  However, in this case the burden of bringing evidence has been reversed, and the reason lies in two pillars.
50. The first pillar is the man's procedural conduct, which was problematic and characterized by evasion and concealment, and a stubborn attempt to exhaust the court and the opposing party by providing irrelevant, vague answers that do not relate to the question itself. This conduct caused the woman severe evidentiary damage and even led to a significant complication of the procedure.
51. For example, one of the many appearances of his deliberative conduct in one of his interrogations, which lasted for many hours due to the way he chose to answer questions:

"Attorney for the plaintiff:     Now where did you pay $10 million? Where did you pay them from, from which bank account and when?