Home > Uncategorized > What is the Impact Of Marital Fault In Maintenance (a.k.a “Alimony”) Determinations In New York:

What is the Impact Of Marital Fault In Maintenance (a.k.a “Alimony”) Determinations In New York:

As a divorce lawyer, I often hear the following, “My lousy good for nothing spouse did…….. ” followed by “what?!!!” when I provide my response. This is because most people begin the process of divorce with the mistaken belief that their soon to be ex’s cheating, cavorting, drinking, buying gifts for their paramour, and otherwise unacceptable behavior will strongly influence a court’s determination of the financial issues of their divorce. Fortunately, this is not the case. (I know if you have been cheated on you are perhaps not so happy with my use of the adjective “fortunately” so … I shall explain.)

Short of hiring someone to murder your soon to be ex, marital fault will play no role whatsoever in determining financial issues in divorce. Under New York law, specifically Domestic Relations Law (DRL) § 236, a court must consider 11 factors in making a determination with regard to alimony (also known as “maintenance”) While the first 10 factors are specific, the eleventh is essentially a catch-all provision that allows the court to consider “any other factor which the court shall expressly find to be just and proper”.

The primary consideration of the court in determining an award of maintenance to the less monied spouse is the parties’ pre-separation standard of living. Courts will also focus on the length of the marriage, the parties’ respective earning capacities, income disparities, and the tax consequences that would arise from a maintenance award.

Even though the 11th factor, the catch-all, affords the court broad discretion in making decisions with regard to equitable distribution and maintenance, marital fault is generally not a factor that may be considered under the case law. The New York Court of Appeals held in O’Brien v. OBrien, that marital fault is not relevant to the financial issues decided in divorce except in them most extreme and shocking situations. The Court reasoned that a marriage is in part an economic partnership and upon its dissolution the parties are entitled to a fair share of the marital estate. The court further noted that fault would usually be difficult to assign and invariably involve involve the courts in time-consuming procedural maneuvers relating to collateral issues The Conclusion of the court is that marital fault will not be explicitly considered by the court except in most extreme of circumstances.

This is not the approach that most litigants expect–in fact most spouses who find their significant other cheating of course feel that it is indeed “extreme” and therefore begin the divorce process focusing solely on the numerous misdeeds of their spouse.

As an attorney, I often find this is much to their detriment for a variety of reasons. Although angry and hurt spouses often want vindication, they much more often do not want the accompanying legal bill that results from dragging one’s spouse through the dproverbial dirt. The sooner one begins to focus on the children and the finances, the sooner rational decision making can begin. This ultimately makes for a much less expensive and adversarial divorce–and when there are children involved, the less adversarial the better. After all, you will be communicating with and/or seeing the schmuck at least until the kids are emancipated, and perhaps at a wedding or two thereafter. The sooner you can agree to disagree, or at least not discuss those illicit affairs, the better. It may initially be hard for a divorcing spouse to accept that the issues that have the most emotional impact on them have minimal, if any, impact on the outcome of the divorce, but in the long run, it is better for all involved. While each case has to be reviewed based upon its unique facts, the odds are that unless your spouse has hired a hitman, marital fault will not be the defining factor with regard to the financial aspects of divorce.

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