I am often asked whether as a lawyer, I am able to persuade the court to divide the parties’ assets unequally in situations where one of the parties had an affair, engaged in some acts of domestic violence, or committed repeated acts of verbal and emotional abuse. In nearly every case, my response is that in most cases, marital fault is irrelevant to the equitable distribution issues.
The New York State Legislature, in 1980, enacted the Equitable Distribution Law (“EDL”) (codified as Domestic Relations Law § 236 B). The adoption of which had been advocated because the traditional common law theory of property resulted in inequities upon the dissolution of a marriage. The EDL was premised on the entirely new theory that a marriage is an economic partnership to which both parties contribute as a spouse, wage earner, or homemaker, and mandates the equitable distribution of marital assets based upon the circumstances of each particular case. Under the EDL, the distribution of marital assets depends not only on the financial contribution of the parties but also on a wide range of non-enumerated services to the joint enterprise, such as homemaking, raising children, and providing the emotional and moral support necessary to sustain the other spouse in coping with the vicissitudes of life outside the home. Domestic Relations Law §236(B)(5)(d) lists 13 factors to be considered when making an equitable distribution award, which factors encompass, among other things, the income and property of each party at the time of the marriage and at the time the divorce action was commenced, the duration of the marriage, the age and health of the parties, a maintenance award if one had been issued, and the non-titled spouse’s direct or indirect contributions to the marriage.
It is now recognized that marital fault may be taken into account under the EDL’s “catchall provision,” which allows for the consideration of “any other factor which the court shall expressly find to be just and proper” (DRL §236[B][d]). The criteria which must be considered when evaluating whether marital fault should play a role in any particular case were first stated by the Appellate Division, Second Department, in Blickstein v. Blickstein, 99 A.D.2d 287, appeal dismissed, 62 N.Y.2d 502 (1984), which stated that the “marital misconduct [must be] so egregious or uncivilized as to bespeak of a blatant disregard of the marital relationship – misconduct that shocks the conscience’ of the court thereby compelling it to invoke its equitable power to do justice between the parties” (Id. at 292). This guideline was explicitly adopted by the Court of Appeals in O’Brien v. O’Brien, 66 N.Y.2d 576, 589-590 (1985).
In McCann v McCann, 156 Misc.2d 540 (Sup. Ct. 1993), the court addressed issues of marital misconduct. In McCann, a husband had married with the express promise to his wife to make every effort to have children. He subsequently refused to fulfill that promise after several years of lying, and as a result, his wife became infertile because of her advanced age. The court found that, while the husband’s misconduct showed “a blatant disregard for the marital relationship” and was “morally reprehensible,” it did not constitute egregious marital conduct sufficient to be considered in equitably distributing the marital assets. To be deemed egregious, the court concluded, the conduct must “callously imperil the value our society places on human life and the integrity of the human body”.
The only cases in which reprehensible behavior has been deemed to constitute egregious fault sufficient to effect equitable distribution have involved extreme violence. In Havell v. Islam, 301 A.D.2d 339 (1st Dept. 2002), for example, the Appellate Division, First Department upheld the matrimonial court’s award of more than 95% of the marital estate to a wife where her husband beat her with a barbell and a piece of pipe, thereby breaking her nose, jaw and some of her teeth, causing multiple contusions and lacerations, along with neurological damage and other serious injuries. While the husband pleaded guilty to first-degree assault on his wife, the First Department accepted the lower court’s finding that the husband’s attack amounted to attempted murder and constituted egregious marital fault. The egregious fault has also been found in instances of rape, kidnapping, and protracted and severe physical abuse.
Conversely, conduct that courts have found not to be egregious includes adultery, alcoholism, abandonment, and verbal harassment coupled with several acts of minor domestic violence.
A recent example of how high this standard is set was demonstrated in Howard S. v. Lillian S., 2009 N.Y. Slip Op 01880 (1st Dept. 2009). In Howard S., the wife allegedly misrepresented to her husband that he was the biological father of one of their children, when in fact the child was conceived during her adultery and fathered by her lover.
The husband married the wife in May 1997 and they had four children. In February 2004, the wife had an extramarital affair with an unnamed man and became pregnant with a child, who was born in December 2004. The husband contends that the wife knew or should have known that the husband was not the child’s biological father, but concealed that information from him.
According to the complaint, in February 2007, the wife began another affair which “continues to this day.” The wife also concealed this second adulterous relationship from her husband, but in the spring of 2007, suggested that they separate and enter into a collaborative law process.
During this period husband had become suspicious about the child’s parentage, allegedly due to all the jokes within the circle of family and friends that the child looked nothing like him. Without telling his wife, the husband, in February 2008, arranged for a DNA test of himself and the child. The test confirmed that he was not the child’s biological father. The wife now acknowledges that the husband is not the child’s biological father, but claims that she learned this from the DNA test results and denies that she deliberately concealed the truth about the child’s parentage from her husband.
The divorce complaint filed by the husband asserted causes of action for divorce based on both cruel and inhuman treatment and adultery and asserts a separate claim based on fraud. As damages for the fraud claim, the husband seeks to recover his child support expenses for the child, the fees for the parties’ collaborative law process, and profits from the couple’s investments from the time of the child’s conception until the commencement of the divorce action.
In May 2008, the husband moved for “expanded discovery” to prove the “defendant’s egregious fault,” the fraud claim, and her lack of contribution to and dissipation of the marital property. The lower court limited the recoverable damages to the husband’s share of the fees for the collaborative law process. The court also denied the husband’s request for expanded discovery as to the wife’s marital fault on the ground that her alleged misconduct did not constitute egregious fault and had no bearing on prospective spousal maintenance and equitable distribution. The husband appealed on the grounds that the court (1) erred by holding that he had failed to state a claim for egregious fault and (2) erred by holding that he could not recover child support payments and certain real estate investments as damages for his fraud claim.
The Appellate Division held that while the wife’s alleged misconduct could not be condoned and was clearly violative of the marital relationship, it did not rise to the level of egregious fault, since she neither endangered the lives or physical well-being of family members nor deliberately embarked on a course designed to inflict extreme emotional or physical abuse upon them.
In view of the cases cited above, this result was almost certain from the beginning. As painful and harmful lies and deceit in a marriage may be, and Howard S. is as egregious of a case as I have ever seen, unless there was significant violence between the parties, the court would not alter equitable distribution on the basis of marital fault. At the same time, New York’s equitable distribution principles do not require equal distribution, if other factors of the EDL can be satisfied. If you are in a situation where you are dealing with these issues, and considering divorce, I suggest that you speak with an experienced New York divorce lawyer.