Last time, we raised the question of whether fault can be a factor in property division decisions here in New York, and if so, then how? As we noted, fault is generally not a factor for judges when making property division decisions. It may become a factor, though, in certain rare instances, as the case we mentioned last time demonstrates.
The way fault can sometimes become a consideration for purposes of property division is that judges are allowed by statute to take into account “any other factor which the court shall expressly find to be just and proper.” Courts generally do not consider fault to be a factor that may be considered, but it has been found that there are rare cases where it may be.
An appellate case from 1984 held that courts may take fault into account when a spouse engages in “egregious” conduct against the other spouse. This principle has been utilized in cases where an abusive spouse engaged in conduct that is “outrageous” or “shocking to the conscience.” Such situations are exceptional, but do exist. In the case we’ve been discussing, there apparently wasn’t much property to divide, and this was understood to be a reflection of the husband’s failure to provide proper support for the wife and their children.
It is important, of course, for those who have been subjected to particularly abusive treatment to work with an experienced attorney to ensure they receive strong guidance and advocacy in the property division process.
Fault can also come into play in child custody determinations, as well, insofar as fault impacts the “best interests of the child.” In our next post, we’ll take a look at this issue.