The Financial Penalty for Spousal Abuse: A New York Judge Ups the Ante, By Awarding All Marital Property to the Abuse Victim

Last week, New York Judge Jacqueline Silbermann sent a strong message to abusive spouses. In the case of DeSilva v. DeSilva, she ruled, in a divorce, that a wife was entitled to one hundred percent of the couple's marital property because her husband had verbally and physically abused her.

Judge Silbermann has come down hard on abusive spouses before: In 2001, in another divorce case, Havell v. Islam, she made headlines for awarding ninety-five percent of a couple's marital property to the wife, because the husband had brutally attacked her with a barbell, leaving her with near-fatal and permanent injuries. (I discussed the case in more detail in an earlier column for this site.) Judge Silbermann reasoned that because the husband's behavior "shocks the conscience," it was appropriate to deviate from the property division that might otherwise be appropriate.

In this year's DeSilva case, the husband's behavior was far less egregious than the barbell attack at issue in Havell -- and yet was used to justify an even greater deviation from the usual division of marital property. With this broadened definition of "egregious" behavior, Judge Silbermann has opened the door, in property division proceedings, to consideration of marital misconduct, more generally, in the allocation of marital property.

The DeSilvas' Marriage and Divorce: Misconduct, Some Assets, More Debt

In the DeSilva case, Mrs. DeSilva alleged that Mr. DeSilva had engaged in a long history of abuse toward her, which, she said, had increased over time in frequency and intensity, and involved his heavy drinking. Among other allegations, she said he spat in her face; while she was pregnant with their second child, threw a packed duffel bag at her stomach; and engaged in verbal tirades, during which he called her unspeakable names, often in front of their children and other people as well. Mrs. DeSilva testified that she feared for her safety and the safety of her children, and suffered extreme mental anguish because of her husband's conduct; indeed, he had been arrested at least five times as a result of physical altercations with other people, such as a coworker and a cabdriver.

At the time Mrs. DeSilva sought a divorce, the couple held less than $45,000 in assets, including a car, her pension, and the cash-surrender value of their life insurance policies, but had about $65,000 in debt. Mr. and Mrs. DeSilva had disparate earnings and earnings potential. She had a degree in fashion design and had recently held a job earning $100,000 per year. He had a degree in marketing, but earned less than half of what she did -- $45,000 per year.

Mrs. DeSilva clearly alleged and proved sufficient abuse to gain a divorce on grounds of extreme cruelty, even under New York's relatively strict laws. The tougher question in a case like this is how to apportion the couple's assets and debts and, more importantly, whether one party's misconduct ought to be part of the calculus.

Equitable Distribution: Who Gets Marital Property and Marital Debts?

When couples divorce, courts are often saddled with the task of dividing their property. In most states, this process is guided by the principle of "equitable distribution," under which the property a couple has accumulated during marriage (and even the property they brought to the marriage, in some states) will be fairly apportioned between them. Courts are rarely given unfettered discretion in this process, but, instead, are guided by legislatively mandated factors to consider.

New York's equitable distribution law, Domestic Relations Law § 236(b)(5)(d), provides thirteen factors that courts must consider before dividing marital property. Most of the factors relate directly to economic information such as past earnings, the amount of property the parties brought to the marriage, their expected future income and property acquisition, the tax consequences of property distribution, and whether either party wasted assets during the marriage or transferred them to avoid distribution. In addition, courts are directed to consider non-economic factors such as the duration of the marriage, the age and health of the parties, and the need for a custodial parent to keep the marital residence.

With respect to these many factors, the trial judge in the DeSilva case found only a few to be relevant: Judge Silbermann held that the plaintiff should continue to occupy the marital residence because she had custody of the couple's two small children; that she greatly out-earned him; and that his future financial circumstances were uncertain because of alcohol abuse and anger issues that made it difficult for him to retain jobs.

On these findings alone, a court might well have given Mr. DeSilva a slightly greater, or at least an equal share, of the couple's assets, and perhaps a smaller proportion of the debts -- given his predicted lower future income stream. But here's where the thirteenth factor comes into play: New York's equitable distribution law also directs courts to consider "any other factor which the court shall expressly find to be just and proper."

Here, Judge Silbermann noted, "a pattern of conduct involving both physical and verbal abuse which rises to the level of egregious fault." And, based primarily on that finding, the judge awarded one hundred percent of the marital assets to Mrs. DeSilva and ninety-two percent of the debts to Mr. DeSilva.

Different States' Views on the Role of Marital Misconduct in Property Division

The decision to strip Mr. DeSilva of any marital assets and saddle him with most of the marital debts may seem an obvious penalty - or an outrageous one, I suppose, depending on your point of view -- for abusing his wife. In most states, however, a court would simply not be permitted to consider his behavior during the marriage, no matter how egregious, when apportioning marital property.

But New York is not "most states" when it comes to family law. Most states - every other one, in fact - permit couples to obtain a "no-fault" divorce, where either party can unilaterally seek to have the marriage legally dissolved, even if the desire is not mutual, and even if they cannot agree on post-marital issues like custody, alimony, and the division of property. In New York, however, a spouse must allege and prove marital fault in order to obtain a divorce, or the couple, together, must agree to separate and file a written agreement resolving these issues without court intervention.

Unsurprisingly, most states that - unlike New York -- prohibit or discourage the consideration of fault in determining whether to grant a divorce similarly restrict consideration of fault for related issues like marital property division. Two influential compilations separated by more than thirty years - the Uniform Marriage and Divorce Act (1970) and the American Law Institute's Principles of the Law of Family Dissolution (2002) - take the view that consideration of fault has no place in property division proceedings. And nearly two-thirds of the states follow this view, disallowing consideration of fault entirely for property division purposes. (The rules regarding the consideration of fault in setting alimony awards can be different, as I discussed in a prior column.)

The remainder of states do permit consideration of fault in marital property division, though often only in limited circumstances.

Among them is New York -- which permits courts to consider marital misconduct as part of the "any other factor" analysis, but only if it is egregious.

Why the Judge's Ruling Was Right: Penalizing Domestic Violence

To reach the property division result in the DeSilva case, the judge had to hold that Mr. DeSilva's behavior constituted egregious fault, in that it "shocked the conscience." In prior cases, attempted murder of a wife, and a man's rape of his stepdaughter, both qualified under the standard. And in Havell v Islam - which the judge herself had decided, as noted above, in 2001 - the standard was held to encompass domestic violence as well.

In Havell, the husband quite literally beat his wife within an inch of her life, and, as a result, she was awarded ninety-five percent of a $13 million marital estate. In the opinion, Judge Silbermann looked to the law in other states, as well as to social science evidence about the physical and psychological ramifications of domestic violence for its victims. She concluded that the "egregious fault" standard could be interpreted to include domestic violence.

The conduct in Havell was indeed egregious - almost incomprehensibly so. After beating his wife with a barbell and watching her teeth and parts of her jaw fly across the room, Mr. Islam told their frantic children not to worry about helping her because she was already dead. She survived the attack, but suffered permanent neurological damage. The trial court's ruling in that case was upheld by the appellate division, which concluded that marital misconduct could, indeed, be taken into account when dividing property as long as it was "so egregious or uncivilized as to bespeak of a blatant disregard of the marital relationship."

Does the husband's behavior in DeSilva meet that standard? The shock value of Mrs. DeSilva's story is admittedly less than in Havell. Yet, if a sustained pattern of physical and verbal abuse of a spouse does not meet the requisite standard, perhaps we should think about why: Is domestic violence such a common aspect of some marriages that we deem it within the bounds of the normal and civilized? Let us hope not.

Surely abusing a spouse is one way to exhibit "a blatant disregard of the marital relationship." Thus, if New York were to permit spouses in marriages like the DeSilva's to walk away on equal footing (as many states do), financially, it would be subtly acknowledging the normalcy of the abuser's behavior.

While Justice Silbermann has at least implicitly broadened the category of "egregious" conduct that can justify the consideration of fault in property division, in doing so, she has sent the right message: Domestic violence is not a normal part of marriage and its perpetrators must pay.