How Domestic Violence Can Affect Property Division in a Divorce
Gone are the days in New York when one spouse needed to show the other’s wrongdoing in order to obtain a divorce. Nowadays, divorces are typically granted on no-fault grounds, namely an irretrievable breakdown in the marriage. However, that doesn’t mean fault is wholly irrelevant. One spouse’s mistreatment of the other can affect the way in which marital support is awarded and property is divided.
New York’s Domestic Relations Law § 236, which sets out the criteria divorce judges use in equitable distribution of property, now includes consideration of whether either party has committed domestic violence against the other party. This provision, adopted in 2020, was a significant departure from the prior law, under which — absent “egregious” misconduct — equitable distribution had been fault-neutral and based solely on financial criteria.
Domestic violence is defined in the state’s Social Services Law § 459-a as acts by a family member that resulted in or created a substantial risk of physical or emotional harm to another family member or to their child. These can include acts that are punishable as crimes, such as disorderly conduct, harassment, aggravated harassment, sexual misconduct, forcible touching, sexual abuse, stalking, criminal mischief, menacing, reckless endangerment, kidnapping, assault, attempted assault, attempted murder, criminal obstruction of breathing or blood circulation, strangulation, coercion and theft. However, domestic violence can take any other form as well.
A spouse seeking a greater share of equitable distribution based on domestic violence must demonstrate not only that one or more violent acts occurred but also that they had a direct impact on the victim’s financial situation. This might include showing inability to earn a living as a consequence of being subjected to such acts or of being fear of harm that might befall them or their children.
Proven acts of domestic violence can affect the post-divorce landscape in other ways, such as:
- Occupancy of the marital residence — The court may grant a victimized spouse exclusive use of the marital home, forcing the abusive spouse to vacate the premises.
- Spousal maintenance (alimony) — The court may award higher spousal maintenance to help address the financial disparities resulting from the abuse.
- Child custody and visitation — If the court determines that the safety and well-being of the children are at risk due to domestic violence, it may deny the abuser custody and/or visitation.
- Protective orders and restrictions — The court may limit the abusive spouse’s access to certain assets or financial resources.
If you are seeking a divorce and have been a victim of domestic violence, an attorney who concentrates in family law can help you obtain an equitable distribution of assets.
The Law Office of Maurice J. Verrillo, P.C. in Rochester practices divorce law throughout north central New York State. Call us at 585-563-1134 or contact us online to schedule a free initial consultation.