Can a Court take into account marital fault when determining the distribution of property?

The general rule in New York is that marital fault should not be considered in determining equitable distribution.  Although extremely rare, it is possible for a New York court to determine that fault may constitute a factor, which would diminish a court’s award of maintenance or property distribution to the “guilty” spouse under the catchall factor of the Equitable Distribution law that allows the court to consider any relevant factor.  DRL §236(B)(5)(d)(13) & (6)(a)(11).

It is well settled that marital fault should only be taken into consideration where the “marital conduct is so egregious or uncivilized as to bespeak of 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.” See Blickstein v Blickstein, 99 AD2d 287, 292 [1984]; see also, O’Brien v O’Brien, 66 NY2d 576, 589 – 590 [1985].

Additionally, at least one court in New York has expanded upon the principles in Blickstein, supra, holding that for fault to be a factor there must be a finding of such adverse detrimental effect upon the innocent spouse.  Wenzel v Wenzel, 122 Misc2d 1001, 1002 [1984].  However, it should be noted that Wenzel, supra, is a lower court decision from Suffolk County, and at least one Appellate Division has declined to adopt the Wenzel two prong analysis, instead relying on the standard set forth in Blickstein, supra.

In McCann v McCann, infra, the Court elaborated on the concept of egregious conduct set forth by the Blickstein court and presents an explanation regarding how a court should determine whether conduct is egregious.

With respect to the concept of egregious behavior, marital fault may also be understood as a voluntary act in the context of the marriage that causes some social harm. The difference between ordinary marital fault and egregious marital fault, however, concerns the relative importance of the particular social value involved. The more highly the preservation of an interest is valued by society, the more likely it is that the offensive conduct in question will be deemed egregious.

A Judge, therefore, in determining whether particular conduct amounts to egregious marital fault, must decide whether the social interest compromised by the offending spouse’s conduct is so fundamental that the court is compelled to punish the offending spouse by affecting the equitable distribution of the marital assets.

McCann v McCann, 156 Misc2d 540, 546 [Sup Ct 1993]

Since Blickstein, supra, marital fault was considered in the following cases; Havell v Islam, 301 AD2d 339 [1st Dept 2002] (former husband attempted to kill wife); Wenzel v Wenzel, 122 Misc2d 1001, 1002 [1984] (attempted murder); Valenza v Valenza, NYLJ, Jan. 16, 1990, at 31, col 4 [Sup Ct, Queens County]) (rape); Thompson v Thompson, NYLJ, Jan. 5, 1990, at 28, col 3 [Sup Ct, Nassau County, McCaffrey, J.] (rape); Safah v Safah, NYLJ, Jan. 8, 1992, at 26, col 5 [Sup Ct, Suffolk County]) (kidnapping).

Conversely, the courts held that such egregious circumstances do not exist merely by reason of a spouse’s homosexuality (M. V. R. v T. M. R., 115 Misc2d 674, 681 [Sup Ct 1982]) or engagement in an adulterous relationship, (Lestrange v Lestrange, 148 AD2d 587, 588 [2d Dept 1989]); a spouse’s allegedly deceitful entry into the marriage on the basis of a false promise to have children, (McCann v McCann, 156 Misc 2d 540, 547 [Sup Ct 1993]) or his or her excessive drinking, verbal harassment or threats against the other spouse, or even his or her resort to minor domestic violence (Orofino v Orofino, 215 AD2d 997, 997 [3d Dept 1995]).

If the above cases do not present a clear enough picture of what constitutes egregious conduct that shocks the conscience, below is an excerpt from Havell v Islam, infra.

On April 15, 1999, plaintiff advised defendant that she would seek a divorce. Several days later, on April 21, 1999, he broke the locks on the door to her bedroom, where she slept separately from him. On April 22, 1999, their daughter Chloe’s birthday, he set his alarm clock to waken him at 4:00 A.M. and entered his wife’s bedroom at approximately 5:00 A.M. The wife awoke to the sight of him entering her bedroom, taking a seat in a chair at the foot of her bed, and wearing yellow rubber gloves and carrying a barbell. When she sat up, he went over, pinned the wife to the bed with his knee and began beating her viciously on the head, face, neck and hands with the barbell. Plaintiff, who was conscious during the incident, observed her blood, teeth and bone spattering everywhere. Her screams brought their three young daughters, Chloe, Clarissa and Georgina, aged 15, 12 and 10 respectively, into the room where defendant told Chloe that he had killed her mother. As Chloe tried to call 911 for assistance, defendant twice attempted to renew his attack on plaintiff, first with a long piece of pipe and then with a large towel over her face. The daughters held him off her until the police arrived and arrested defendant.

Havell v Islam, 301 AD2d 339, 341 [1st Dept 2002]