Home DIVORCE LAWYERS & LAW TOPICS Divorce Cases & Analysis So your husband was an “animal” and it is his “fault” the...

So your husband was an “animal” and it is his “fault” the marriage failed; will the court “punish” him?

Wenzel v. Wenzel;  Blickstein v. Blickstein; Pagan v. Pagan

Okay. I am going to post on case law tonight. It is my least favorite type of post but I think I am due one. BTW, one of the critiques I get about this blog is that it is not “lawyerly” enough. It’s not “serious” enough. I’ve been taking it to heart and have been trying to think how I can assuage my critics without losing my voice. How can I give some lawyer creds to this blog without getting too “lawyerly”?  

One way I think I’ve decided to handle that is to post more case law type posts. I know. I’m gritting my teeth already. I have to say it’s difficult for me to sound lawyerly because I almost anathematize  “lawyerliness.”  I much prefer a lighter approach any day of the week. But I also understand where my critics are coming from. Sometimes I tend to jump the shark over here.

Having said that, I wanted to talk about the concept of “marital fault” tonight and how that impacts the distribution of assets following the dissolution of a marriage. Listen to me, little Ms. Lawyer….Ahahahaha.

Okay. So when we talk about divorce and marital property and the distribution of said property following the dissolution of a marriage (aka divorce) the court can consider about 13 factors in deciding which spouse gets what. Among those factors are:

1) the income and property of the parties

2) Length of the marriage, age and health

3) need for marital residence

4) loss of inheritance rights

5) Maintenance

6) Equitable claims

7) Liquidity

8) Future financial circumstances

9) Valuation and distribution difficulties

10) Tax consequences

11) Wasteful dissipation

12) Transfers without fair consideration

13)  any other factor which the court deems just and proper.

Factor 13 has always been seen as the go to factor when all else fails. That is the wiggle room that spouses use to get the court to make awards that are more favorable to them, because that particular factor allots a great amount of discretion to the court and is open to the interpretation of individual judges–subject of course to the Appellate Division and the Court of Appeals.

So, with respect to the issue posed in this post, if one party was an “animal” (whatever that means I think we can all put a meaning to it that suits our imagination god knows many a wife has called her husband an animal in my presence) and that person’s conduct single-handedly “caused the marriage to fail,” can the court factor that conduct into consideration when making an awarding of “equitable distribution?”

I think the answer is yes. The court can. And sometimes, the court does. Using factor 13 as it’s sword and shield.  But I should say that with respect to “fault” the court does not invoke factor 13 all that  often. In other words, “marital fault” (example he cheated on me with 13 guys and 23 women) is not usually a factor 13 issue that the court takes into consideration in making a “just and proper”  award as far as  equitable distribution of property goes in New York, as a general rule, unless, as was demonstrated in Wenzel v. Wenzel the conduct of one spouse was “so egregious” that it “shocked the conscience of the court.” Well, actually, I take it back. Maybe the example I just cited might shock the court’s conscience. I don’t know.

At the end of the day, it is really going to come down to what you mean when you say your husband or your wife was an “animal.” Did he or she, for instance, attempt to butcher you with a knife and landed you in the hospital as in the Wenzelcase? Because if so, that would shock the conscience of the court and the court may even award the victim spouse the entire value of the marital assets as it did in Wenzel.

But it depends. Because the Appellate Division in Blickstein v. Blickstein chose not to “punish” the husband the way the trial court did and reversed the trial court which had ordered that ALL the marital property goes to the wife. In that case the Appellate courts ordered a 60/40 split in favor of the wife. In the Pagan case, the court refused to even consider an accidental shooting at all in terms of what each spouse would get in equitable distribution. I guess the court’s conscience was not sufficiently “shocked.”

So what is the takeaway? Well, in terms of equitable distribution, unless the spouse at “fault” engaged in conduct that was so “egregious” that it “shocked the conscience” of the court, parties are likely to walk out of that marriage with what the court deems as “fair” and conduct or “fault” will not factor into that distributive award.

See source: New York Law of Domestic Relations by Alan D. Scheinkman

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