New York’s statute on property division in divorce generally does not make marital fault (i.e., violence, desertion, adultery or “extreme cruelty”) a factor justifying an unequal division of property, but it does have a general provision saying the court can look at “any other factor” that may be “just and proper” to consider when deciding how to divide property. Under the 1984 Blickstein case, fault can only be considered if it is “so egregious or uncivilized as to bespeak of [sic] 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.” The New York appellate division now cites and applies these rules (in Howard S. v. Lillian S., N.Y. App. Div. 1st Dept. 3/17/09) to say that they cannot be used against a woman who had an affair and pretended that the resulting child was her husband’s for several years before the couple finally separated.
Justice Helen E. Freeman points out that the only cases where behavior has affected property division have involved extreme violence, attempted murder, rape, kidnapping or protracted and severe physical abuse. Earlier cases have found adultery, alcoholism, abandonment, verbal harassment and “minor domestic violence” to not be egregious enough to affect property division.
Justice Eugene Nardelli dissents, but his reason is certainly a sign o’ the times: it’s not the cheating or the lying, it’s the wife’s “willingness to play fast and loose with the health of her child by knowingly misleading his health care providers as to his true genetic background, thereby providing a ... false medical history, and then refusing to rectify the situation when asked to do so,” which “contravenes ... paramount social values.” Well, I guess that’s what you call values clarification. The majority opinion counters that there was not any record of the wife actually making any misrepresentations to health care providers. Wife said she did not know that the child was her lover’s and not her husband’s, and the husband claimed she “knew or should have known”, which would seem to indicate that he didn’t have any actual evidence that she knew. Do “paramount social values” require a woman in this situation to get her newborn DNA-tested?