Prior to the coronavirus outbreak (COVID-19), legislation was introduced that would add as a factor to be considered by the court when determining equitable distribution "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." A 1967-A (Zebrowski) and S 6050-A (Hoylman). While the legislation was pending, the governor the New York signed into law a Budget Bill (S-7505-B, part "PP"), which provides for the same amendment to the New York Domestic Relations Law. In the midst of COVID-19, UN chief António Guterres has called for protective measures to address a "horrifying surge in domestic­­ violence." Guterres posted on his Twitter page: "Many women under lockdown for #COVID19 face violence where they should be safest: in their own homes." If there were ever a time to e­­mphasize the importance of the enacted legislation, now would be the time.

New York state has promulgated useful, public information on the subject of domestic violence. See New York Office for the Prevention of Domestic Violence, "What Is Domestic Violence?". Domestic violence is, by statute, required to be considered by New York courts in the context of determining what is in the best interests of a child for purposes of a custody dispute. See generally DRL §240. Additionally, New York courts are required to consider domestic violence in the context of determining both temporary and post-divorce maintenance. See DRL §§236B(5-a)(h)(1)(g) and 236B(6)(e)(1)(g). In the maintenance context, however, while §459-a of the Social Services Law is expressly mentioned, the applicable factor where domestic violence is considered concerns "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." The "include but are not limited to" language is not set forth in the enacted legislation in respect of domestic violence as a factor for equitable distribution, but rather, it solely identifies §459-a of the Social Services Law.

Turning to equitable distribution, while the impact on a party's ability to earn should be considered, it should not be the lone consideration. Domestic violence perpetrated against a spouse who is a homemaker, or whose earnings are not directly inhibited as a result, is still domestic violence. In the context of equitable distribution, New York courts "shall consider," inter alia, a party's direct or indirection contributions during the marriage, and, "any other factor which the court shall expressly find to be just and proper." See DRL §236B(5)(d)(7) and (14; now paragraph "15"). Thus, New York courts are required to consider a party's contributions—negative or positive—when determining equitable distribution. Negative contributions can materially impact equitable distribution awards in New York. As one extreme example, in Cotton v. Roedelbronn, 170 A.D.3d 595 (1st Dep't 2019), the Appellate Division affirmed a 90/10 distribution of certain entities valued at $19,942,898 in part because the non-titled spouse not only made "little, if any, contribution to the growth of these businesses", but also "at times acted as a hindrance to plaintiff's business dealings".

If the non-titled spouse in a nine-year marriage (Cotton) may be left with 10% of entities worth nearly $20,000,000 in part because she "at times acted as a hindrance to plaintiff's business dealings," then New York courts should make room to consider how, if at all, domestic violence during a marriage should or should not impact equitable distribution.

Trial court judges have discretion to consider "any other factor" they deem to be "just and proper." They should be (and now have been) given the express authority—indeed, the direction—to include an act or acts of domestic violence—in all of its forms pursuant to the broad language in the social services law—under that umbrella.

This author finds no merit to the opposition, articulated by some, that the enacted legislation has no statute of limitations. Perhaps the alleged act of domestic violence occurred in year five of a 20-year marriage. Just as the trier of fact is best suited to assess the credibility of a witness at trial, the trier of fact can also assess whether or not the allegation of domestic violence should impact equitable distribution. Part of that calculus may involve the time that has passed since the alleged act occurred.

Other objections to the enacted legislation are that an allegation of domestic violence may have no merit and/or that the legislation will open the door to requiring courts to monitor or otherwise pay heed to ordinary bickering among divorcing couples. First, as with all other facets of the law, the rules pertaining to frivolous conduct remain in force. In addition, if domestic violence is a factor that courts are required to consider in determining equitable distribution, then the accused should have the right to take discovery on the subject which might tend to show that the allegation lacks merit. Second, the enacted legislation is not meant to burden courts with refereeing ordinary squabbles among divorcing couples. The trier of fact is equipped, based on the record of evidence, to determine the extent to which a party's allegations reveal ordinary bickering versus domestic abuse.

Some will say there is already precedent in New York providing that domestic violence can rise to the level of egregious conduct, which should therefore impact equitable distribution. See Alice M. v. Terrance T., 2015 NY Slip Op 51913(U) (Sup. Ct., Kings Cty. 2015) (Sunshine, J.). However, a court may decide that the act or acts of domestic violence in question does not rise to the level of egregious conduct. That does not mean such act or acts should therefore be immune from consideration in the context of a DRL §236B analysis

Lastly, the enacted legislation does not reintroduce fault divorce; §170(7) of the DRL, New York's version of no-fault divorce, remains the law. It does, however, reaffirm the already existing statutory framework which requires courts to consider the totality of contributions, positive or negative, made during a marriage.

Not only is domestic violence, in any form (whether physical violence, coercive control, or otherwise) a negative contribution to a marriage, but as a matter of public policy, it is antithetical to good citizenship. As we collectively endeavor to hit the reset button and ultimately transition to the post-COVID-19 environment, an opportunity has been justly seized to further deter domestic violence in the home.

Alan Feigenbaum​ is a partner at Alter, Wolff & Foley.