• When It Matters Who is At Fault for the Divorce
  • January 17, 2018
  • When a couple divorces, the main issues to resolve in a divorce settlement are custody and visitation (if they have children), spousal support and/or child support, and the division of assets. Under New York law, a divorcing couple’s assets must be divided “equitably”—meaning “fairly”–depending on factors such as length of the marriage, age and health of each spouse, and how much income each earned during the marriage. For a long marriage, equitable distribution usually means a 50/50 split.

    Clients often ask me if fault is considered as a factor in equitable distribution. When one spouse has been betrayed, lied to, or does not want the marriage to end, he or she may feel entitled to more of the assets because the other spouse is “at fault.” The answer is: fault for the divorce may affect the division of assets, but the courts have permitted it only in very narrow circumstances.

    The courts generally favor separating “finances” and “fault” in divorce cases. In 2010, New York passed a “no-fault divorce” law, allowing divorce based upon the irretrievable breakdown of the marriage for a period of six months prior to filing for divorce. All the court needs is a sworn affidavit from one spouse stating this as the basis for the divorce. The other spouse cannot prevent a divorce, even if he or she objects. Before 2010, in order to get a divorce, one spouse had to prove there were “grounds” for divorce, such as abandonment, cruelty or adultery.

    Even when parties had to establish grounds, “fault” and “finances” were supposed to be kept separate. But there are exceptions.

    In a 2016 recorded case, the appellate court (First Department) stated that marital fault is only considered in equitable distribution “where such conduct is so egregious or uncivilized as to bespeak of blatant disregard of marital relationship.” Such conduct must “shock the conscience of the Court or callously imperil the value society places on human life and the integrity of the human body.” In this case, the husband stabbed his wife twice with a steak knife, slammed her head against the toilet, caused her to go into a coma, requiring five surgeries and months of hospitalization, rendering the wife is disabled. The court awarded the wife 95% of the value of the marital home.

    In another case of egregious conduct, the wife lost her equitable share of marital property after she hired a hit man and put out a contract to kill her husband.

    In other words, the bar is high for fault to be considered even if a spouse inflicts social or moral harm on the other. However, fault may also be considered when the fault is directly connected to financial consequences. According to the law, these factors may play a role in the division of property:

    1. wasteful dissipation of assets (such as gambling, reckless spending risking investments, marital funds spent on extra-marital affairs),
    2. transferring or otherwise removing assets from the couple’s joint property before the start of a divorce action (for example, depleting accounts or transferring marital property to children or relatives as gifts to decrease the amount of property that gets divided).
    3. another provision, called the “wild card,” is any other factor the court deems just and proper.

    If a client can prove there was dissipation, the Court can consider that when dividing assets. If your spouse had an affair during the marriage, can you get a greater property division because of his or her infidelity? No, not simply because of the affair, but you can seek some equitable payback for marital money that was spend on the lover during the affair. Income or assets spent on dates, dinners, hotel rooms, gifts, and secret vacations can all constitute dissipation of marital assets. You are justified in seeking a portion of that dissipated money to be returned to you.

    Similarly, if your spouse depletes accounts for his or her benefit, makes gifts of marital property or money to others, or unilaterally takes out a mortgage or home equity loan on the marital residence, thereby reducing its value, the court can require that those assets be accounted for in the final division of property.

    The wild card factor is a generic provision that could include fault, if the court decides it should. The court has taken fault into consideration when one spouse moves out and provides little or no financial support for the other spouse or the family for a prolonged period of time.

    Another wild card factor could be an addiction, such as gambling, alcohol, or other substance abuse (or it could come under dissipation). If an addiction eats up marital money, the non-addicted spouse may seek a division of assets that “compensates” for the loss of assets due to no fault of his or her own. Even obsessive, abusive shopping online has become an addictive behavior in some marriages; the court may award a greater share of the assets (not the online purchases) to the other spouse as compensation for the money spent.

    In any case, the spouse asking for a greater share in the equitable distribution of marital property has to show that he or she has been harmed in some way by the spouse for the court to consider the request. When a divorcing couple negotiates an agreement without resorting to the courts, they may have more room to fashion a settlement that takes fault into account in the final division of property.

    Copyright (c) 2018 by Mary F. Kelly