New York Adds Domestic Violence as a Factor to Consider in Equitable Distribution

New York State divorce courts now weigh domestic violence as a factor when making decisions about how to divide property among the spouses. Under a revised statute that took effect in 2020, courts must now consider “whether either party has committed an act or acts of domestic violence … against the other party and the nature, extent, duration and impact of such act or acts.”

This is a significant change in New York’s equitable distribution law, which until now has not called for taking a spouse’s fault into account in determining how to divide assets in a divorce. Courts must now weigh how much a spouse’s history of domestic violence should diminish his or her share of the award.

Equitable distribution means a divorce court must divide the marital property fairly but not necessarily equally. To determine what is fair, the court considers a number of factors, among them:

  • How long the couple has been married
  • Each person’s income
  • The spouses’ ages and health status
  • The earning potential of both parties
  • Whether the couple has any children
  • Whether one spouse stayed home to care for the home or children
  • Whether one spouse worked in order to allow the other spouse to pursue an educational degree

Notably, most of these factors pertain to the spouses’ contributions to the marriage, both economic and otherwise. Until now, a spouse’s bad acts have not been considered in equitable distribution, except for “egregious conduct” such as the wasting of marital assets to finance an extramarital affair.

The recent amendment to Domestic Relations Law §236 does not define domestic violence but refers to another statute. Under Social Services Law §459-a, domestic violence is an act committed by a family or household member that results in actual physical or emotional injury or that creates a substantial risk of physical or emotional harm to another family member or their child.

The act must be one that would constitute a violation of criminal law, regardless of whether or not it was prosecuted. Examples include 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 and strangulation.

Because the change in the law is so recent, there has not been a chance for a body of case law to develop on how the new factor will be weighed. It is vital to seek guidance from an experienced divorce attorney on the revised law’s potential effects. Also bear in mind that you and your spouse have an opportunity to decide between yourselves how to divide your property, rather than leaving the determination to a judge.

At the Law Office of Maurice J. Verrillo, P.C. in Rochester, we help people navigate divorce and other family law matters in New York. To schedule your free consultation, call us at 585-563-1134 or contact us online.


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