On April 3, 2020, tucked away in a bill largely addressing the New York State budget for the 2020-2021 fiscal year, the Legislature amended Domestic Relations Law (DRL) §236B(5)(d) by adding a new factor a court must consider in distributing property between divorcing spouses. 2020 NY Senate-Assembly Bill S-7505-B, A-9505-B. The law adds domestic violence as a factor and mandates that the court consider “whether either party has committed an act or acts of domestic violence, as described in [Social Services Law §459-a] against the other party and the nature, extent, duration and impact of such act or acts.” DRL §236B(5)(d)(14). As admirably well-intentioned as this amendment is, it represents a significant departure from current law, which, absent “egregious” misconduct, has principally been fault-neutral since the advent of equitable distribution 40 years ago. It will have repercussions for the courts, practitioners, and litigants.

The legislation requires judges to consider domestic violence in fashioning an equitable distribution. The legislative history explains:

Domestic violence is a scourge in our society. Often times, it not only leads to the dissolution of a marriage but has physical, emotional and psychological effects on the victim. Abuse within a marriage must be considered in order to properly adjudicate its dissolution and the financial situation established. This bill would direct a judge to consider abuse when making an equitable distribution decision. (Emphasis supplied.)

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