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NY Courts Define 'Egregious Conduct'
Like New Jersey, New York generally does not consider fault when distributing marital assets. (See Strober L: Marital Misconduct and Alimony. The Matrimonial Strategist, November 2006.) However, there are circumstances under which both states will factor in fault.
New York's Domestic Relations Law (DRL) ' 236 was amended, effective July 16, 1980, to add as Part 'B' the availability of multiple financial relief, including equitable distribution. Left in place as Part 'A' of the statute were the provisions for 'alimony' (termed 'maintenance' for the first time in Part 'B') for all actions begun before the effective date of the amendment. Under Part 'A,' alimony had been statutorily barred for a spouse found guilty of fault. While buried in the text, here is the language that led to that result:
Such direction may be made notwithstanding that the court refuses to grant the relief requested by either spouse ' (2) by reason of the misconduct of the other spouse, unless such misconduct would itself constitute grounds for separation or divorce '
In plain English, this meant that, under Part 'A,' a spouse could not receive alimony as a matter of law, if found guilty of fault sufficient to constitute grounds for separation or divorce (whether or not a separation or divorce were being sought on those grounds). Upon the enactment of Part 'B,' which did not contain this language, the question immediately arose: What effect, if any, would fault have upon the awarding of equitable distribution and maintenance? As to child support, the statute explicitly barred consideration of fault in fixing child support: 'The court shall not consider the misconduct of either party.' (DRL '236(B)(7)).
The Concept of Egregious Fault
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