Joanna L. Grossman

Who's Your Daddy? A New York Court Says the Answer Doesn't Matter When the Court Is Dividing Marital Property

By JOANNA L. GROSSMAN


Tuesday, March 31, 2009

When Lillian S. and Howard S. began the process of dissolving their marriage, they elected to pursue a "collaborative law" divorce, one which followed special procedures and rules designed to avoid unnecessary conflict and pain for both of them. This was an ironic choice for this particular couple because, during the process, it was revealed that the couple's youngest child was fathered by another man during the wife's extramarital affair – a fact that stopped the amicable divorce in its tracks.

The new information raised two critical legal questions: Should the wife's affair or alleged concealment of her son's parentage affect the distribution of the couple's marital property? And, should the husband be able to collect damages for fraud if his wife knowingly concealed the truth about her son's parentage?

A New York appellate court answered both questions in the negative in Howard S. v. Lillian S., a ruling that correctly preserves the law's intentional separation between marital misconduct and property division.

The Big Reveal

Howard and Lillian married in 1997, after meeting at work in the World Trade Center. She was a receptionist in the lobby; he was a lawyer whose office was in the building. Within a few years, they had two children together, and he adopted her daughter from a prior relationship. In 2004, Lillian gave birth to a fourth child, Charles. His parentage does not seem to have been in doubt – or, if it was, the couple does not seem to have discussed it -- for the first several years of his life.

After the couple began proceeding towards divorce in 2007, however, Charles's parentage came into question. Howard alleges that he had become suspicious because of frequent jokes by family and friends about how he and Charles looked nothing alike. He secretly arranged for DNA testing, which conclusively proved that Howard is not, in fact, Charles's father. Howard also alleges that his wife had begun a second extramarital affair in 2007.

The parties disagree about whether Lillian knew of Charles's true parentage earlier, or whether she learned of it only from the DNA tests Howard had done. She now acknowledges that another man fathered the child, but claims that she did not conceal information or make any misrepresentations because she simply didn't know the truth about Charles's parentage.

As noted above, though the parties had begun to pursue a collaborative law divorce – an approach where the parties and their lawyers essentially agree that they will not pursue or threaten litigation related to divorce or its consequences – Howard abandoned it and filed a complaint for fault-based divorce. He cited his wife's affair and Charles's parentage both as grounds for the divorce – cruelty and adultery – and as a factor to be taken into account when the court divided the couple's marital property.

The Role of Fault in Divorce

As a general matter, marital "fault" – breaches of the basic obligations of marriage like adultery, abandonment, or cruelty – has diminished in importance in divorce proceedings. Historically, proof of fault was an essential component of a petition for divorce, but today it plays much less of a role, thanks to the "no-fault revolution" that began in the 1960s. A period of separation or a recital of "irreconcilable differences" is sufficient in most states to obtain a divorce; in some states, those "no-fault" grounds are the exclusive way to get a divorce.

In New York, however, fault still remains highly relevant to many divorce cases. Couples can receive a "no-fault" divorce only if they enter into and file a written separation agreement that resolves all of their issues such as property distribution, alimony, and child custody, and then live pursuant to such an agreement for one year. Thus, many individuals pursue a fault-based divorce, which gives them the ability to seek a divorce over the objection of the other party and to put issues like property distribution and alimony before a judge.

For Howard, his wife's proven infidelity was more than sufficient to warrant a fault-based divorce. The question, though, was whether he could also use that evidence against her in the distribution of marital property.

Marital Fault and the Division of Marital Property

Before the advent of no-fault divorce, states universally permitted fault to be considered when the court divided marital property. The same fault that justified dissolution of the marriage could also dictate who got what share of the marital property and whether one party would have to pay alimony to the other. Then, as time passed, though states were quick to eliminate or minimize consideration of marital fault in determining entitlement to divorce, they hesitated to eliminate its consideration in the division of marital property.

When a couple in a non-community-property state divorces, the court has the authority to equitably distribute the couple's marital property. (In some states, the court may also have the discretion to reallocate each individual's separate property, though that is not the case in New York.) The equitable distribution process is typically guided by a list of enumerated factors adopted by the legislature or by courts in prior cases. States disagree about whether marital fault is an appropriate factor for consideration.

If the marital fault has direct or indirect economic consequences for the marriage, it is generally ripe for consideration at the property-distribution stage. Thus, a spouse who has dissipated the couple's assets through gambling or increased the other spouse's economic need through physical violence may not get an even share of what's left.

But what about fault with no economic consequences – just garden-variety breaches of the marital relationship like adultery or abandonment? Roughly half the states disallow consideration of such fault entirely in dividing property. The rest permit it, either always or only in certain circumstances.

The basis for the disagreement among states can be attributed in part to their different theories of marriage and the justification for the equitable division of property. In states that treat marriage as a partnership somewhat akin to a business partnership, the goal is to split the proceeds fairly between the partners based on their contribution to the partnership when it ends. Under that approach, non-economic fault is basically irrelevant. But other states, while they may espouse a similar theory, see divorce court as a place to do justice between two people and their relationship. In such a view, the consideration of fault makes more sense, since a spouse who mistreats the other, particularly in extreme ways, may "deserve" less.

The Role of Fault in Equitable Distribution: The New York Approach

New York takes a middling approach to the consideration of non-economic fault when apportioning marital property. New York's divorce statute generally directs courts to consider 13 factors before deciding how to apportion marital property. These factors include the extent of the couple's income and property, the age and health of the parties, the duration of the marriage, the source of their income, and their future financial circumstances. But the thirteenth factor is open-ended, inviting courts to consider "any other factor which the court shall expressly find to be just and proper."

Courts have ruled that marital fault does not generally fall under the "any other factor" label, but that certain misconduct may qualify. The misconduct must be "so egregious or uncivilized as to bespeak of a blatant disregard of the marital relationship misconduct that shocks the conscience of the court, thereby compelling it to invoke its equitable power to do justice between the parties."

Courts have been strict about cabining this "egregious fault" exception to truly extreme circumstances – attempted murder of a spouse or rape of a stepdaughter, for example. More recently, New York courts have applied this exception to one case in which a husband hit his wife in the face with a barbell, causing debilitating permanent injury. (I discussed that case in this prior column, and discussed another case involving more typical domestic violence in this earlier column.)

Howard S. v. Lillian S.: No "Egregious Fault"

In the Howard S. v Lillian S. divorce lawsuit, Howard sought permission to extend "discovery" – the process during litigation by which the parties obtain information from one another that might be relevant to their claims – to gather information about his wife's affair and her alleged efforts to conceal the parentage of their fourth child. The trial court denied the request, however, ruling that the alleged misconduct did not constitute egregious fault for purposes of equitable distribution.

On appeal, over the dissent of one judge, the court affirmed this ruling. It noted a number of cases in which courts had refused to treat adultery as "egregious fault." (Other non-egregious types of marital misconduct, according to New York courts, include alcoholism, abandonment, and verbal harassment.) The court reasoned that the concealment of the child's parentage, if proven, presents a more compelling case of "blatant disregard" of the marital relationship, but, still, it is insufficient to constitute egregious fault.

In an earlier case, McCann v. McCann, this same court had ruled that a man who lied for several years in order to avoid impregnating his wife – despite his express promise before marriage that they would "make every effort" to have children – did not commit egregious fault, even though she had become infertile due to age by the time she discovered his misconduct. The court ruled that spousal misconduct must not just disregard the marriage relationship, but must also "callously imperil the value our society places on human life and the integrity of the human body."

The dissenting judge focused more on the "blatant disregard of the marital relationship" language in the case setting forth the egregious fault exception. He found "no dispute" that Lillian's actions showed the high level of disregard that the law requires, in a relationship that "must rest on mutual love, trust and respect." While this judge's assessment of the behavior's affect on the marriage seems fair, the doctrine has not evolved to encompass every such breach of marital expectations.

The majority judges were correct, in my view: Under such a tough standard, Lillian's behavior, while falling short of basic marital expectations, was just not bad enough to justify an effect on the distribution of marital property. While this ruling may seem heartless, it is ultimately right. Fault is messy, and divorce law is better served by its elimination. It is thus important to cabin it to only the most extreme cases of misconduct, if it is to be considered at all. And it can hardly be said that adultery "shocks the conscience," given what surveys report about the percentage of married people who engage in it at some point during their lifetime. Studies have reached different conclusions, but it's not a stretch based upon available evidence to estimate that twenty-five percent of married persons engage in at least one act of adultery. And non-parentage of a marital child is also surprisingly common – studies estimate that as many as 5 percent of all children born to married women are fathered by someone other than their husbands.

Howard has also asked for damages to compensate him for Lillian's alleged fraud. Although this claim was not rejected outright, he was limited to collecting the expenses of the "collaborative law" process that the couple had begun before Howard knew the truth about his wife and the parentage of his son. As I have written in a past column, claims for paternity misrepresentation are construed narrowly and difficult to win.

In the end, while one might feel sympathetic towards Howard's claims here – he has, after all, been mistreated in a serious and fundamental way as a spouse – the court was right to continue its hard line on the consideration of marital fault when apportioning marital property. Fault had its day in divorce court – but that day has come and gone. New York should now take the further step of eliminating it from consideration of a spouse's entitlement to divorce as well. It is high time for New York to adopt a more sensible, general no-fault approach – which is more attractive for reasons I have detailed in another column.



Joanna Grossman, a FindLaw columnist, is a professor of law at Hofstra University. Her columns on family law, trusts and estates, and discrimination, including sex discrimination and sexual harassment, may be found in the archive of her columns on this site.

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