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On April 3, 2020, tucked away in a bill largely addressing the New York State budget for the 2020-2021 fiscal year, the Legislature amended Domestic Relations Law (DRL) §236B(5)(d) by adding a new factor a court must consider in distributing property between divorcing spouses. 2020 NY Senate-Assembly Bill S-7505-B, A-9505-B. The law adds domestic violence as a factor and mandates that the court consider "whether either party has committed an act or acts of domestic violence, as described in [Social Services Law §459-a] against the other party and the nature, extent, duration and impact of such act or acts." DRL §236B(5)(d)(14). As admirably well-intentioned as this amendment is, it represents a significant departure from current law, which, absent "egregious" misconduct, has principally been fault-neutral since the advent of equitable distribution 40 years ago. It will have repercussions for the courts, practitioners, and litigants.

The legislation requires judges to consider domestic violence in fashioning an equitable distribution. The legislative history explains:

Domestic violence is a scourge in our society. Often times, it not only leads to the dissolution of a marriage but has physical, emotional and psychological effects on the victim. Abuse within a marriage must be considered in order to properly adjudicate its dissolution and the financial situation established. This bill would direct a judge to consider abuse when making an equitable distribution decision. (Emphasis supplied.)

Sponsor's Mem., Bill Jacket, L. 2020, ch. 55 §1.

History: The "Catchall" Factor

Prior to 1980, New York distributed property between spouses based on title and applied a gender-based spousal support system. In 1980, the New York State Legislature enacted the Equitable Distribution Law (codified as Domestic Relations Law §236B) (EDL), which eliminated the "title controls" regime and instead mandated that property be divided "equitably" between spouses. It requires judges to determine an equitable division of property through the consideration of enumerated factors—initially ten factors, and currently fifteen. DRL §236B(5)(d).

Notably, none of the factors set forth in the original EDL addressed marital fault. However, under the tenth "catchall" factor, which remains in effect today, the court can consider "any other factor which the court shall expressly find to be just and proper." DRL §236B(5)(d)(15).

For several years following the passage of the EDL, courts grappled with the issue of whether marital fault should be considered under the "catchall" factor in making equitable distribution determinations. In 1984, the Second Department provided guidance in Blickstein v. Blickstein, 99 A.D.2d 287 (2d Dept. 1984), holding that only marital fault so egregious and in such blatant disregard of the marital relationship that it "shocks the conscience" should be considered. Nearly two years later, the Court of Appeals adopted this rule in O'Brien v. O'Brien, 66 N.Y.2d 576 (1985).

Since Blickstein and O'Brien, courts have had divergent interpretations of the type of conduct that rises to the level of "egregious" marital fault. See Havell v. Islam, 288 A.D.2d 160 (1st Dept. 2001) (husband's attempted murder of wife amounted to egregious fault resulting in wife's receipt of 95% of the marital estate). C.f., Orofino v. Orofino, 215 A.D.2d 997 (3d Dept. 1995) (husband's excessive drinking and verbal and physical abuse of wife, including placing a rifle to her head threatening to kill her, not egregious fault).

While courts have disagreed about the specific conduct rising to the level of egregious, they have routinely limited discovery of issues regarding marital fault; and cases finding egregious fault have been few and far between. Notable is the Court of Appeals' decision in Howard S. v. Lillian S., 14 N.Y.3d 431 (2010). In Howard S., the wife had an extramarital affair that resulted in the birth of a child. The husband alleged that his wife knew he was not the biological father of the child but concealed that fact from him throughout their marriage. The husband filed for divorce on the grounds of cruel and inhuman treatment and adultery and asserted a separate cause of action for fraud. At nisi prius, the husband sought discovery into the wife's conduct to prove her "egregious" fault and his fraud claim. The Supreme Court denied the discovery motion, holding that the wife's conduct was not egregious and, therefore, not relevant to spousal maintenance and equitable distribution. The decision was affirmed by the First Department and the Court of Appeals.

In Howard S., the Court of Appeals specifically noted that fault was generally not considered in determining equitable distribution because it "will usually be difficult to assign and introduction of the issue may involve the courts in time-consuming procedural maneuvers relating to collateral issues." Additionally, the court held that "[a]lthough CPLR 3101(a) provides for 'full disclosure of all matter material and necessary in the prosecution or defense of an action,'" courts will consider "marital fault in only a limited set of circumstances involving egregious conduct." Among the reasons the court limited discovery was the "significant potential for abuse and harassment as a result of such discovery, as well as the possibility that parties will be induced to enter into disadvantageous settlements rather than litigate these types of intensely personal issues."

Concerns

Despite the Court of Appeals' concerns, the 2020 amendment has opened the door to litigants obtaining discovery of domestic violence-related fault claims. Prior to the amendment, judges were permitted to consider domestic violence in the context of equitable distribution at their discretion if such a consideration was "just and proper." Pursuant to the amendment, the EDL now requires a court to consider whether any domestic violence has occurred, including its "nature, extent, duration and impact." DRL §236B(5)(d)(14). As a result, Howard S. and its progeny have likely been rendered moot as to domestic violence, making the Court of Appeals' concerns a potential, even likely, reality.

The party alleging abuse is thus forced to revisit that traumatic experience in order to seek relief in connection with such claim(s), including, in all likelihood, in a deposition. Under those circumstances, an abused spouse might elect to enter into an unfair and less-than-beneficial settlement agreement to avoid this emotionally taxing process.

As for the accused spouse, on the one hand, that party will have a legitimate right to explore the elements of the claims(s) and may well need to use the discovery process to do so. In connection therewith, a prudent practitioner may justifiably choose to serve a detailed set of interrogatories at the outset of a litigation, inquiring whether the opposing party will claim that domestic violence occurred during the marriage, and if so, the nature, extent, duration, and claimed impact of that violence. On the other hand, the accused spouse may use the discovery process as another form of abuse, by forcing that victim to engage in deliberately traumatic, burdensome, and expensive discovery. Although courts can issue a protective order if it determines a party is abusing the discovery process (see, e.g., CPLR §3103(a)), abuse of process may be difficult to discern without a hearing on whether or not (i) the claim has merit or (ii) expansive discovery requests are propounded for legitimate reasons or to harass and abuse.

Additionally, there are criminal concerns at a play. Under the new factor, a party alleging domestic violence will need to prove that his or her abuser committed one of the enumerated offenses listed in Social Services Law §459-a, which would constitute a violation of the Penal Law. If asked in discovery about one of these offenses, an abuser may assert his or her Fifth Amendment rights to avoid criminal responsibility. Although a court has the right to draw a negative inference against a party asserting his or her Fifth Amendment rights in a civil proceeding (see, e.g., El Dehdan v. El Dehdan, 26 N.Y.3d 19 (2015)), it is unclear what effect such an inference will have on equitable distribution.

Conclusion

As our already overburdened courts re-open and we begin to litigate issues under the 2020 amendment, it remains to be seen whether the Legislature's goal of protecting abused spouses will come to fruition or whether it will lead to protracted discovery, cause further harm to an abused party, and add more fuel to the fire in an already abusive relationship. And where does it leave trial judges? Will they seem callous in issuing a decision acknowledging the veracity of the abuse allegations but finding the abuse insufficient to skew the asset division percentage? Does a lawyer hearing of abuse from a client need to pursue the claim or obtain a written waiver from a client who chooses not to pursue it, or risk facing a malpractice claim down the road? No one seeks to diminish the impact of abuse on the abused as an individual and on society as a whole. As we enter into a new phase of divorce litigation, proceedings will unfold under the 2020 amendment and, in time, these questions will be answered.

Adam Turbowitz is a partner at the family law firm Aronson Mayefsky & Sloan. Kerri Anne McDonough, an associate at the firm (awaiting admission), assisted in the preparation of this article.