In August 2010, Gov. David Patterson signed legislation making New York a no-fault divorce state. With divorce now largely predicated on an irretrievable breakdown of a marriage, the question arises as to how and in which forum matrimonial clients should address issues of domestic violence, including but not limited to assault, battery and defamation. In particular, can clients seek compensation for domestic violence from their spouses in a parallel tort action as opposed to addressing these issues exclusively in divorce proceedings … or is that a double dip?

Recent events have brought this issue to the forefront. First, the state has seen a rise in domestic violence, particularly during the COVID-19 pandemic. Second, the legislature amended the Domestic Relations Law (DRL) in May 2020 to require courts to consider the nature, extent, duration and impact of acts of domestic violence, as described in §459-a(1) of the social services law, against the other party with respect to an equitable distribution of property. See DRL 236B(5)(d)(14). Further, with regard to spousal support, where the court finds that the suggested maintenance guideline amount is unjust or inappropriate, the court is now required to consider “acts by one party against another that have inhibited or continue to inhibit a party’s earning capacity or ability to obtain meaningful employment.” Such acts include, but are not limited to, acts of domestic violence. The new post-divorce maintenance provisions apply to actions commenced on or after Jan. 23, 2016, whereas the temporary maintenance revisions apply to actions commenced on or after Oct. 25, 2015. See DRL 236B(5-a)(h)(1)(g) and 236B(6)(e)(1)(g).