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Egregious conduct and Equitable Distribution Law

Domestic Relations Law § 236 (B) (5) (d) sets forth the factors a court must consider when making an equitable distribution award. The statute does not specifically provide for consideration of marital fault, but does contain a catchall provision that allows a court to consider “any other factor which the court shall expressly find to be just and proper” (Domestic Relations Law § 236 [B] [5] [d] [14]). The Courts have, however, rejected the notion that marital fault is a “just and proper” factor for consideration, “[e]xcept in egregious cases which shock the conscience of the court” (O’Brien v O’Brien, 66 N.Y.2d 576, 589-590 [1985]). This rule is based, in part, upon the recognition that marriage is, among other things, an economic partnership and that the marital estate should be divided accordingly. The Courts have also observed that “fault will usually be difficult to assign and [that] introduction of the issue may involve the courts in time-consuming

procedural maneuvers relating to collateral issues” (O’Brien, 66 NY2d at 590)”.

‘Although the courts have not had occasion to further define egregious conduct, courts have agreed that adultery, on its own, does not ordinarily suffice (see e.g. Newton v Newton, 246 A.D.2d 765, 766 [3d Dept 1998]; Lestrange v Lestrange, 148 A.D.2d 587, 588 [2d Dept 1989]). This makes sense because adultery is a ground for divorce—a basis for ending the marital relationship, not for altering the nature of the economic partnership’. The New York Court of Appeals have indicated that “at a minimum, in order to have any significance at all, egregious conduct must consist of behavior that falls well outside the bounds of the basis for an ordinary divorce action. This is not to say that there can never be a situation where grounds for divorce and egregious conduct will overlap. However, it should be only a truly exceptional situation, due to outrageous or conscience-shocking conduct on the part of one spouse, that will require the court to consider whether to adjust the equitable distribution of the assets (see e.g. Levi v Levi, 46 A.D.3d 520 [2d Dept 2007] [attempted bribery of trial judge]; Havell v Islam, 301 A.D.2d 339 [1st Dept 2002] [vicious assault of spouse in presence of children]). Absent these types of extreme circumstances, courts are not in the business of regulating how spouses treat one another.

While adultery, and many of its unintended consequences, will undoubtedly cause a great deal of anguish and distress for the other spouse, it does not fit within the legal concept of egregious conduct. Moreover, plaintiff‘s cause of action for fraud  is based entirely upon defendant’s alleged adultery and on plaintiff’s reliance upon the denial of that behavior. Plaintiff cannot obtain discovery for what is essentially an allegation of marital fault.

Although CPLR 3101 (a) provides for “full disclosure of all matter material and necessary in the prosecution or defense of an action,” Domestic Relations Law § 236 (B) (5) (d) is the specific statutory provision that governs equitable distribution in marital actions. Despite the general policy in favor of liberal discovery, this Court has interpreted the more specific section of the Domestic Relations Law to allow for consideration of marital fault in only a limited set of circumstances involving egregious conduct. In the absence of those circumstances, liberal discovery on issues of marital fault—at variance withO’Brien—should not ordinarily be permitted, though there may be exceptions in rare circumstances (see e.g. Anonymous v Anonymous, 71 A.D.2d 209, 214 [1st Dept 1979]). Despite the availability of protective orders if courts were to consider these matters on a case by case basis, there remains 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”. See Howard S. v. Lillian S., 14 NY3d 431 ( 2010 NY Slip Op 03474)


ATTORNEY ADVERTISING: Information herein and is not intended to be, legal advice. This sample legal document is provided as part of a free public educational service by Zachary Irtaza Riyaz, Esq., attorney at law in the State of New York (Westhampton – Tel. 516-234-0348), for reference only. IT IS NOT INTENDED TO GIVE LEGAL ADVICE ABOUT A SPECIFIC LEGAL PROBLEM, NOR DOES IT CREATE AN ATTORNEY-CLIENT RELATIONSHIP. Due to the importance of the individual facts of every case, the generalizations I make may not necessarily be applicable to any particular case. Statutes and codes such as Domestic Relations Law (DRL)are frequently amended and may affect the validity of the above legal document and no representation is made that the above sample is going to be enforceable in the future. Changes in the law could at any time make parts of this web site content obsolete. Updated statutes and codes may be available at the New York State Legislature Website. No statute or sample legal document should be relied on without understanding controlling case law which may further interpret it. THIS INFORMATION IS PROVIDED WITH THE UNDERSTANDING THAT IF LEGAL ADVICE IS REQUIRED THE SERVICES OF A COMPETENT ATTORNEY SHOULD BE CONSULTED.