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Discovery and 'Non-Egregious' Marital Fault
Even as no-fault divorce legislation in the State of New York has been signed into law, matrimonial practitioners continue to deal with the vestiges of fault-based litigation. Some of these include the relevance of marital fault in relation to equitable distribution, and discovery with respect to marital fault. In the recent case of Howard S. v. Lillian S., 14 N.Y.3d , 902 N.Y.S.2d 17, 2010 N.Y. Slip Op. 03474 (2010), handed down on April 29, the Court of Appeals addressed the issue of egregious marital fault as a factor in equitable distribution. Specifically, the court held that the wife's alleged extramarital affairs ' one of which purportedly resulted in the birth of an out-of wedlock child whom her husband thought was his ' did not, as a matter of law, rise to the level of “egregious marital conduct.”
Egregious marital conduct, in the legal sense, is that conduct which falls well outside the bounds of the basis for an ordinary divorce action. The wife's actions in Howard S., being less than unheard-of, therefore could not properly be considered as a factor to be taken into consideration in the equitable distribution of marital property. Accordingly, the court ruled, with one judge dissenting, that the husband was not entitled to liberal disclosure regarding the wife's alleged misconduct. Implicit in this decision is the adoption by the Court of Appeals of the rule that, in general, discovery relating to the issue of grounds is not permissible in a matrimonial action. Although the First and Second Appellate Departments had long held this view, the Third and Fourth had not.
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A Lawyer's System for Active Reading
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Protecting Innovation in the Cyber World from Patent Trolls
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