Domestic Violence As A Factor in New York Divorce

Domestic violence has a major impact on affected lives and that impact should not be ignored in divorce. 

Not only is such violence the catalyst for the divorce, but it also affects the children and other aspects of the marriage including finances. Many of my clients who have endured physical abuse, also had to endure financial abuse. Abusers often limit access to marital assets and are likely to try to hide or destroy assets to keep them from the victim of abuse. 

Victims are often so afraid of the abuser that they will give up what they are entitled to just to get away quickly, even if it leaves them in poverty. 

In New York, the equitable distribution of marital property is governed by Domestic Relations Law §236B, which requires judges to determine the division of marital property through the consideration of factors. 

Though none of these factors directly addressed marital fault, one of the factors permits the court to consider “any other factor which the court shall expressly find to be just and proper.” DRL §236B(5)(d)(15).

The Second Department used this factor in In 1984,  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. This directive was further adopted by the Court of Appeals in O’Brien v. O’Brien, 66 N.Y.2d 576 (1985), and has been they way the courts have considered domestic violence when determining equitable distribution ever since. 

The problem with this egregious misconduct is the vagueness. What rises to the level of egregious misconduct? What type of behavior “shocks the conscience”? 

The courts have been torn on this. In Havell v. Islam the 1st Department found that the husband’s attempted murder of wife was egregious enough to award her 95% of the marital estate. See, Havell v. Islam, 288 A.D.2d 160 (1st Dept. 2001). But placing a rifle to your wife’s head and threatening to kill her is not egregious enough in the 3rd Department. See, Orofino v. Orofino, 215 A.D.2d 997 (3d Dept. 1995). 

The other problem is the courts had the discretion, and not the obligation, to consider domestic violence. With this new amendment, the court is required to consider the occurrence of domestic violence, including its “nature, extent, duration, and impact.”

While litigating under this new factor will likely uncover many challenges, it is a great step forward for victims of domestic violence. 

If you are a victim of domestic violence and need you to learn your options for getting a New York Divorce, schedule your case strategy today.