Does Adultery Change Equitable Distribution in a Divorce?

Egregious conduct affecting equitable distribution in divorce

Love triangle. Handsome man embrace his girlfriend while holding hands with another girl. isolated on white background.

As a matrimonial and family law attorney, my clients regularly ask me various questions about the factors that may have an impact on their divorce, or the determination of equitable distribution. Some partners believe that they should be entitled to an unequal distribution of assets during circumstances where one party within the relationship was involved in an affair, committed acts of abuse in an emotional or physical sense, or engaged in examples of domestic violence. Unfortunately, the response I often give to by clients is that in most cases – issues of “marital fault” are rarely considered to be a relevant factor in deciding equitable distribution.

The law of Domestic Relations in New York provides guidance for the factors a court should consider when making decisions regarding equitable distribution. Although that statute doesn’t actually offer a distinct provision for consideration of fault, it does allow for some flexibility in the form of a catchall provision permitting the court to analyze “any other factor” that can be determined as both proper and just in considering equitable distribution, maintenance (aka alimony) or child support. Unfortunately, most courts reject the idea that marital fault can be considered as a proper and just factor for consideration, except for in very specific or “egregious cases” which have a direct impact on the court conscience. The fundamental aspects of this rule center on the idea that marriage – in all of its many forms – is a type of economic partnership, meaning that martial estates should always be divided in an accordingly “fair” (equitable) manner. It’s also worth noting that many courts suggest that assigning fault in any particular circumstance can be incredibly difficult, and introducing such an issue into court procedure could make cases far more time consuming than they currently are. After all, New York now has No-Fault divorce, in addition to the fault based factors which still exist as grounds.

Factors to Be Considered in Equitable Distribution

Alone, and without any other influencing factor, adultery is not counted ordinarily as egregious conduct by Domestic Relations law. Although adultery is one of the fault based grounds for divorce – or a basis for an individual choosing to end a marital relationship – it cannot be considered a means for changing the nature of the economic partnership of marriage. At a base level, egregious conduct must be made up of behavior that is thought to fall far beyond the bounds of a typical action for divorce. According to the Domestic Relations law itself, the following factors can be considered, and argued in equitable distribution:

  • The property and Income of each party at the time of the action being commenced
  • The age and health of the parties, and the duration of the marriage
  • The requirement of a custodial parent to occupy a marital residence
  • A loss of pension rights and inherence upon marriage dissolution
  • The loss of insurance benefits upon marriage dissolution
  • Any award of maintenance
  • Any interest in, claim to, or contribution made to the acquisition of marital property including joint expenditures, contributions, or efforts
  • The imagined future financial needs of each party
  • The non-liquid or liquid characteristics of marital property
  • The difficulty of evaluating assets or interests within businesses or professions, and the economic impact of retaining such an asset free from interference through the other party
  • The tax consequence issued to each party
  • The wasteful dissipation by either spouse of assets
  • Transfers made in consideration of matrimonial actions without preceding fair consideration.
  • Any further factor that the court may consider to be proper and just

The point to notice is that New York Domestic Relations Law does not allow fault to be considered specifically, and if it was to fall under any category – it would be the final factor.

What is Egregious Enough to Alter Equitable Distribution?

Many clients wonder – if adultery is not enough to push the consideration of unequal distribution – what could be considered as appropriately egregious? The answer to this is that in order to have significance within a marital case for equitable distribution, egregious conduct must include behavior that is regarded as beyond the bounds of any ordinary divorce action. Importantly, this does not mean that a situation may never arise wherein egregious conduct and grounds for divorce do overlap. What it does mean is that only exceptional circumstances caused by the outrageous behavior of one spouse should require any New York court to consider the adjustment of equitable distribution standards. Beyond these extreme circumstances, courts should not be required or expected to regulate the limitations of how one spouse treats another.

Perhaps the only cases that have ever found reprehensible behavior on the behalf of a single spouse to be deemed egregious enough to affect equitable distribution are those that involve some form of significant violence. For instance, in one case, the matrimonial court was supported by the appellate division in awarding over 95% of the complete marital estate to the wife within the case. The reason for this was that the husband had beaten the wife to a significant extent, causing damage to her teeth, jaw, and nose in the form of breakages, lacerations, and contusions. Although the husband in this particular case pleaded guilty to assault on his wife to the first-degree, the first department accepted the finding that the attack should be considered attempted murder – thereby constituting egregious circumstances. In other situations, egregious marital fault has been linked to instances of kidnapping, severe physical abuse, and rape.

Although it’s fair to suggest that lies, deceit and harmful behavior within a marriage can be incredibly painful to those involved, unless significant violence or like conduct takes place between the parties, most courts will not be pushed to change the boundaries for equitable distribution on this type of consideration. At the same time however, the equitable distribution laws of New York do not require equal distribution to be recognized if particular factors of the EDL are recognized. Typically, if you’re managing a case of divorce or dealing with severe issues in a separation, it’s a good idea to speak to an experienced and educated New York lawyer.

Please feel free to browse our web pages and blog entries for further information on matrimonial law, or call about your initial, free consultation. We look forward to speaking with you.