A Brief History Regarding Equitable Distribution
In 1980 the New York Legislature enacted the Equitable Distribution Law (DRL § 236B) (“EDL”) which required courts to equitably divide marital property based on a consideration of several factors. At the time, the courts had ten (10) factors to consider.[i] Pursuant to the statutory law, courts became tasked with deciding whether marital fault should be considered under what is commonly referred to as the “catchall factor.”
Shortly after the enactment of the EDL in 1984, the Second Appellate Department in Blickstein v. Blickstein found that only marital fault so egregious and in such blatant disregard of the marital relationship that it “shocks the conscience” can be considered by the courts under the catchall factor. This rule was adopted by the Court of Appeals in 1985 in the O’Brien v. O’Brien case. See 66 N.Y.2d 576 (1985).
While the changes to equitable distribution appeared to allow domestic violence victims a way to receive more in equitable distribution, unfortunately, that was generally not the case. Not many cases in the past thirty-six (36) years have found that egregious conduct actually existed. Further, there is no concrete definition of what egregious conduct even is, leaving it up to the court’s discretion to decide whether a spouse was a victim of egregious conduct that “shocks the conscience.”
Recent Amendments To Include Domestic Violence
On April 3, 2020 the legislature amended the Domestic Relations Law (“DRL”) by adding a new factor to be considered in making a distributive award – domestic violence. This recent change is significant because DRL § 236B(5)(d) was previously silent as to whether a court could and should consider domestic violence as a factor in making an equitable distribution decision.
The new addition to DRL § 236(B)(5)(d)(14), provides, “In determining an equitable disposition of property under paragraph c, the court shall consider: . . . (14) whether either party has committed an act or acts of domestic violence, as described in subdivision one of section four hundred fifty-nine-a of the social services law, against the other party and the nature, extent, duration and impact of such act or acts . . .”
Domestic violence is already considered by courts in determining what is in the best interests of a child and in determining both temporary and post-divorce maintenance. For purposes of determining maintenance, the courts considers “acts by one party against another that have inhibited or continue to inhibit a party’s earning capacity or ability to obtain meaningful employment. Such acts include but are not limited to acts of domestic violence as provided in section four hundred fifty-nine-a of the social services law.”
DRL § 236(B)(5)(d)(14) is slightly different than DRL § 236(b)(5-a)(h)(1)(g) and DRL § 236(b)(6)(e)(1)(g)[ii] as it does not include the “include but are not limited to” language, thus indicating that courts may be more restrained in their determination of what constitutes domestic violence for equitable distribution purposes. What makes this issue even more difficult is that Social Services Law (“SSL”) § 459-a does not actually define “an act or acts of domestic violence”; instead, it defines a “victim of domestic violence.” A “‘[v]ictim of domestic violence’ means any person over the age of sixteen, any married person or any parent accompanied by his or her minor child or children in situations in which such person or person’s child is a victim of an act which would constitute a violation of the penal law, including, but not limited to acts constituting disorderly conduct, harassment, aggravated harassment, sexual misconduct, forcible touching, sexual abuse, stalking, criminal mischief, menacing, reckless endangerment, kidnapping, assault, attempted assault, attempted murder, criminal obstruction of breathing or blood circulation, strangulation, identity theft, grand larceny or coercion; and (i) such act or acts have resulted in actual physical or emotional injury or have created a substantial risk of physical or emotional harm to such person or such person’s child; and (ii) such act or acts are or are alleged to have been committed by a family or household member.”
The Potential Impact on Domestic Violence Victims in Divorce Litigation
Unfortunately, we will not know how this amendment will actually affect victims and their abusers until cases begin being litigated on this issue. However, transparency with your attorney is of the utmost importance in divorce proceedings.
If you are a victim of domestic violence, please contact a domestic violence hotline and/or your local law enforcement.
The material in this blog is meant only to provide general information and is not a substitute nor is it legal advice to you. Readers of this article should seek specific legal advice from legal counsel of their choice. In the event that you need legal assistance regarding matrimonial and/or family law matters, please contact Samantha Guido at firstname.lastname@example.org or (516) 393-8250.
[i] To date, that list has grown to fifteen (15), including the most recent addition.
[ii] DRL § 236(B)(5-a) addresses temporary maintenance awards while DRL § 236(B)(6) addresses post-divorce maintenance awards.