Since New York State now has no fault divorce, does that mean that no matter what one spouse may have done to the other spouse, it will not be considered by the Court in the context of a divorce?
The answer to that is no, it may be considered. The general rule is “garden variety fault” is not a factor in what would otherwise be an equitable distribution of marital property. By way of example, garden-variety fault includes extra-marital affairs, verbal abuse, total control of finances by one spouse, alcoholism, drug abuse, abandonment, lack of support, and many other fact patterns.
However, under certain exceptional circumstances fault will be considered, and it must be denominated as “egregious fault”. Definition of egregious fault is something that “shocks the conscience”, even in this time and age. Several examples of egregious fault would include if one spouse causes severe physical injury to another spouse, the hiring of a “hit man” for the other spouse, whether or not such an attack occurred, and sexual abuse of a child or stepchild. These examples are certainly not intended to be all-inclusive, but merely to point out that such behavior would still shock the conscience of the court and the community. In such a case, the court has the power to make a disproportionate division of marital property. Another example might be if one spouse had a drug addiction and spent or dissipated a great deal of marital money. The court would then be well within its power to award most if not all of the marital assets remaining to the other spouse.