"No-fault" rule does not bar court's consideration of husband's assault on wife in determination of asset distribution

Law Reporter, Apr 2003

FAMILY LAW

"No-fault" rule does not bar court's consideration of husband's assault on wife in determination of asset distribution.

Haven v. Islam, - N.Y.S.2d -, No. 350314/99, 2002 WL 31777583 (App. Div. Dec. 12,2002).

A New York appellate court held that despite the general rule of "no-fault" divorce, a court could consider a husband's physical assault on his wife when making an equitable distribution of the couple's marital assets.

Here, Havell sought a divorce from her husband, Islam, who then physically attacked her. She suffered, among other injuries, multiple contusions, a broken nose and jaw, broken teeth, and neurological damage. Islam pleaded guilty to first-degree assault. The trial court in the divorce action granted plaintiff a divorce, denied defendant equitable distribution beyond a pendente lite award, and distributed all other marital assets to plaintiff.

Affirming, the appellate court noted the general rule in New York that marital fault should not be considered in determining equitable distribution of the couple's assets. However, the law also permits courts to consider "any other factor" that may be "just and proper" as part of the process. The relevant precedents specify that marital fault should only be taken into consideration where the misconduct is so egregious or uncivilized as to indicate a blatant disregard for the marital relationship. It must be misconduct that "shocks the conscience" of the court, compelling it to invoke its equitable power to do justice between the parties, the court said.

By considering defendant's physical assault on plaintiff, the trial court properly exercised its broad discretion, given the shocking and despicable nature of defendant's act, the court found. Defendant's objection to the trial court's characterization of his act as "attempted murder" because he only pleaded guilty to first-degree assault is without merit, the court added. Based on the evidence presented, the court had ample justification under the preponderance of evidence standard to find that his conduct was an attempted murder, and it was not bound by the generous plea bargain offered by the prosecutor in the criminal case, the appellate court concluded.

Wife's Counsel

*Ellen Gesmer, New York, N.Y

Kristin Bebelaar, New York, N.Y.