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Domestic Violence

Domestic Violence Becomes a Factor in Equitable Distribution

In April of 2020, the New York State Legislature amended the Domestic Relations Law 236 section that provided a list of considerations when it comes to the equitable distribution of marital property. The addition, found in Domestic Relations Law (DRL) § 236(B)(5)(d)(14) states: “whether either party has committed an act or acts of domestic violence, as described in subdivision one of section four hundred fifty-nine-a of the social services law, against the other party and the nature, extent, duration and impact of such act or acts.”

This is the first time since equitable distribution has been the law of the State of New York that domestic violence is specifically being called out as a factor in the distribution of assets.

For clarity, Social Services Law § 459(A)(1) specifies: ““Victim of domestic violence” means any person over the age of sixteen, any married person or any parent accompanied by his or her minor child or children in situations in which such person or such person's child is a victim of an act which would constitute a violation of the penal law, including, but not limited to acts constituting 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, or strangulation.”

Domestic violence and SSL § 459(A) is mentioned in other areas of the DRL, however the guidelines in other areas such as temporary maintenance and post-divorce maintenance also adds the caveat of “not limited to.”

This minor difference in wording can have serious implications leaving open the possibility of argument against using any deviation from the text in SSL § 459(A) as a reason for any decisions made by the court in the area of asset distribution even if those reasons are used when ordering temporary or post-divorce maintenance.

It is a step forward that domestic violence is now officially being considered during the distribution of assets. Since the change to the law took place after the COVID-19 pandemic had already shut down the courts, it will take some time to see how the courts interpret this law and if the change will allow for a broad interpretation or if the omission of “not limited to” will mean that there will be different standards for equitable distribution and spousal maintenance.

Anthony LoPresti has been practicing in the area of Family law for over 30 years. If you have any questions about equitable distribution, call our office at 516-252-0223 for a free consultation.

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