NEW YORK DIVORCE:MARITAL FAULT IS NOT A FACTOR IN EQUITABLE DISTRIBUTION
In New York State, a married couple's marital property is subject to equitable distribution in a divorce action. The "equitable" distribution of marital property is determined by the set of fourteen factors listed in the Domestic Relations Law. None of these factors is marital fault.
"Marital fault" refers to the misconduct of either party that led to the divorce. Since New York now allows no-fault divorce, the misconduct of a party no longer needs to be alleged. However, many people who are going through a divorce firmly believe that their spouse's misconduct, such as adultery, moving out and abandoning the marriage, or domestic violence, should be considered when determining the equitable distribution of marital property. Unfortunately for them, except in the most extreme of cases, courts will not consider marital fault in determining the equitable distribution of marital property.
When the Courts say extreme cases, they mean extreme. Having a child with another person is not sufficient misconduct to affect equitable distribution of marital property. Conduct that results in an order of protection most likely will not be sufficient to effect equitable distribution.
Egregious fault has been found in cases where one spouse attempts to kill the other. This does not necessarily require a conviction for attempted murder, but some serious felony conviction probably is required. Or, at the least, something on par with this level of gross and violent misconduct is required before marital fault will effect equitable distribution.
Although this rule may seem like non sense at first glance, there is some logic behind it. Since marriage is an economic partnership, in resolving the equitable distribution of marital property - the distribution of the fruits of that partnership - the courts are encouraged to consider economic factors in making their decision. Thirteen of these are spelled out in the Domestic Relations Law.
There is some room for the courts to look beyond these thirteen economic factors. The fourteenth factor is "Any other factor which the court shall expressly find to be just and proper." Courts very often take advantage of this fourteenth factor to conform their decisions to the unique facts of a case. But, these unique facts rarely include marital fault.