Stop-the-Clock Agreements as Binding Separation Instruments and Equitable Distribution Principles – Torkin v. Susac

Introduction

Torkin v. Susac (2025 NYSlipOp 01835) arises from a contested divorce between Michael H. Torkin (“plaintiff”) and Heather Susac (“defendant”). Married in November 2001, with two children, the parties attempted a collaborative divorce in December 2016 and signed three related agreements—including a “Stop-the-Clock Agreement”—fixing December 31, 2016 as the cut-off date for accruing marital assets. When collaboration failed, the plaintiff sued in December 2017. The trial court issued an amended judgment in December 2021 addressing:

• Equitable distribution of the plaintiff’s high-value partnership interests
• Post-divorce maintenance (alimony) under the 2016 DRL amendments
• Credits for interim support and carrying charges on the marital residence
• Classification of a 2014 family trust
• Division of liquid assets and child support under the CSSA
• Enforcement of the Stop-the-Clock Agreement

Both sides appealed; the Appellate Division dismissed the original judgment appeals as moot, and affirmed the amended judgment in all respects.

Summary of the Judgment

The Appellate Division, Second Department, unanimously held that:

1. The amended judgment of divorce controls and is fully affirmed.
2. The defendant is entitled to 37% of the value of the plaintiff’s partnership interest in Sullivan & Cromwell, LLP.
3. Maintenance is set at $10,000/month until the marital home is sold, then $23,000/month through July 31, 2027, with health insurance obligations for the defendant.
4. The plaintiff receives no credit for carrying charges on the marital residence, which were deemed part of his interim support obligations.
5. The 2014 Michael H. Torkin Trust is marital property to be divided equally.
6. The defendant receives the balance of the parties’ liquid marital assets.
7. Basic child support is calculated on a combined parental income of $400,000; no college room-and-board credits are awarded to the plaintiff.
8. The Stop-the-Clock Agreement fixing the accrual cut-off at December 31, 2016 is fair on its face, enforceable, and not subject to collateral attack without proof of unconscionability or fraud.
9. The plaintiff’s 2017 partnership interest in Simpson Thacher & Bartlett, LLP remains his separate property.

Analysis

1. Precedents Cited

The court’s reasoning draws on a host of leading authorities, including:

• Domestic Relations Law §236(B)(5)–(6): Statutory framework for equitable distribution and maintenance obligations.
• Holterman v. Holterman, 3 NY3d 1 (2004): Broad discretion in equitable distribution.
• Novick v. Novick, 214 AD3d 995 (2d Dept. 2023): Guidelines for maintenance above statutory income caps.
• Jones v. Jones, 182 AD3d 586 (2d Dept. 2020): Standard of review in distribution awards.
• Repetti v. Repetti, 147 AD3d 1094 (2d Dept. 2017): Indirect contributions as homemaker and parent.
• Iacono v. Iacono, 145 AD3d 972 (2d Dept. 2016): Interim support includes shelter costs.
• Glessing v. Glessing, 212 AD3d 783 (2d Dept. 2023): Commingling presumption and tracing separate property.
• Anglin v. Anglin, 80 NY2d 553 (1992): Parties may contract out of statutory accrual by fair agreement.
• Hershkowitz v. Levy, 190 AD3d 835 (2d Dept. 2021): Agreements fair on their face enforceable without hearing.
• Tzu Ching Kao v. Bonalle, 214 AD3d 922 (2d Dept. 2023): Deference to credibility findings in nonjury trials.

2. Legal Reasoning

The Appellate Division’s analysis unfolded in several logical steps:

1. Equitable Distribution of Partnership Interests: Under DRL §236(B)(5)(d)(7), “indirect contributions” (homemaking, child-care, support of career potential) justify awarding the defendant 37% of the plaintiff’s Sullivan & Cromwell interest. Citing Novick, Klestadt, and Repetti, the court found no abuse of discretion.
2. Maintenance Calculation: For actions filed after Jan. 23, 2016, DRL §236(B)(6) imposes formulaic calculations up to a statutory income cap, then permits additional maintenance upon consideration of §236(B)(6)(e) factors. The court applied the advisory 30–40% durational guideline for a 15–20 year marriage (DRL §236(B)(6)(f)), setting specific monthly awards and health insurance obligations.
3. Credits and Interim Support: Payments of carrying charges on the home were part and parcel of the plaintiff’s interim maintenance and child support duties (DRL §236(B)(5-a)), so no separate credit was warranted. Iacono and Westbrook confirm that shelter-related obligations negate double recovery.
4. Trust Classification: Property is presumptively marital (DRL §236(B)(1)(c)). The plaintiff failed to trace the 2014 Trust contributions clearly; hence under Glessing, it remained marital and subject to a 50/50 split.
5. Liquid Assets and Collaborative Expenses: The court viewed depletion of marital funds to pay collaborative process costs as inequitable, ordering those costs to be borne by the plaintiff’s post-commencement earnings and awarding remaining liquid assets to the defendant.
6. Child Support under CSSA: DRL §240(1-b) dictates a cap of $163,000 (adjusted for inflation). The court adopted a $400,000 combined-income figure, applied the appropriate percentage, and declined to reduce support for college room and board, following Candea and Matter of Deborah R.
7. Stop-the-Clock Agreement: Under Anglin and Hershkowitz, parties may fix the accrual cutoff by agreement. Here, the December 2016 pact was fair on its face, freely negotiated, and untainted by duress or fraud, hence enforceable without a hearing.
8. Separate Property Determination: Credibility findings at nonjury trial carry great weight (Tzu Ching Kao). The court properly found the Simpson Thacher interest acquired in 2017 was separate.

3. Impact

Torkin v. Susac reinforces and clarifies several emerging trends in New York matrimonial law:

• Validation of Pre-Action Agreements: Parties can reliably “stop the clock” on marital accrual by fair, well-drafted agreements, reducing litigation uncertainty.
• Collaborative Divorce Costs: Courts may reassign the burden of collaborative process fees away from depletion of marital assets—and toward post-commencement earnings—to preserve equity.
• Maintenance and CSSA Clarity: Trial courts must meticulously apply DRL §§236(B)(6) and 240(1-b) guidelines, document considered factors, and resist post hoc credit claims for mandated support obligations.
• High-Income Spouse Equity: Contributions by non-working spouses to professional partnerships will continue to yield significant percentage awards under DRL §236(B)(5).
• Tracing and Commingling Rigor: Trust assets and other investments remain vulnerable to marital characterization unless very clear, contemporaneous tracing records exist.

Complex Concepts Simplified

• “Equitable Distribution” (DRL §236[B]): A multi-factor test considering contributions, duration of marriage, health, earning capacity, and more to divide marital assets fairly, not necessarily equally.
• “Maintenance Guidelines” (DRL §236[B][6]): Formula-driven alimony rules with statutory caps, supplemental discretionary top-ups, and advisory durational schedules.
• “Carrying Charges”: Mortgage, taxes, and utilities on the marital home—treated as part of interim support when the payor is obliged to maintain shelter costs.
• “Commingling Presumption”: Money mingled in joint accounts is presumed marital unless one can trace and prove separate origins by clear and convincing evidence.
• “Stop-the-Clock Agreement”: A separation agreement fixing a cut-off date for property accrual—enforceable if fair, voluntary, and free of overreaching.
• “Child Support Standards Act” (DRL §240[1-b]): Removes judicial unpredictability via a percentage formula applied to combined parental income up to a statutory cap; beyond the cap, discretion guided by enumerated factors.
• “Deference to Trial Court”: The appellate court will not disturb a nonjury court’s credibility assessments or discretionary rulings absent clear abuse.

Conclusion

Torkin v. Susac provides a comprehensive blueprint for matrimonial practitioners: it reaffirms the binding nature of fairly negotiated Stop-the-Clock Agreements, underscores the precise application of DRL §§236(B) and 240(1-b) guidelines, and illustrates the robust discretion courts enjoy in equitably distributing high-value professional assets. Future litigants will heed the decision’s strict tracing requirements for separate property, its stance on collaborative process expenses, and its refusal to count housing costs twice. Overall, the case fortifies New York’s statutory divorce regime, promoting predictability and fairness in high-stakes matrimonial disputes.