New York has long had an ambivalent, if not schizophrenic, attitude toward the role of spousal misconduct in matrimonial litigation. Long after the rest of the nation abandoned fault as the exclusive basis for divorce, New York demanded warring spouses engage in a juridical joust in which evidence of marital misconduct was the weapon of choice and domestic freedom was the prize. Yet, when it came to dividing marital property, the court generally turned a blind eye to the proven misconduct. This article will explore the historic role of fault in equitable distribution and consider recent decisions that suggest the forces of change may be afoot.

Historical Perspective

Prior to the 1980 enactment of New York's equitable distribution law (DRL §236[B]), marital misconduct occupied two pivotal positions in matrimonial litigation. First, absent a valid separation agreement serving as the basis for a conversion divorce, the marital shackles could not be shed without a judicial finding of cruelty, abandonment, imprisonment, or adultery (DRL §170). Second, alimony, rebranded 'maintenance' in 1980, could not be granted to a spouse who was proven to have engaged in misconduct that would entitle the other to a divorce. (DRL §236[A]). Thus, as the winds of reform gained force in 1980, a central question was whether marital misconduct would play a role in the adjudication of property rights under the new law.

Those of us in the trenches of matrimonial practice at the time waited anxiously as the reform bill labored through the final stages of statutory gestation to see what the Legislature would deliver with respect to this issue.