Journal of Civil Rights and Economic Development Journal of Civil Rights and Economic Development

Volume 36, Winter 2023, Issue 3 Article 8

The Law of Equitable Distribution: When Is Domestic Violence The Law of Equitable Distribution: When Is Domestic Violence

More Than Just a Factor in Divorce? More Than Just a Factor in Divorce?

Ada Tonkonogy

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ADA TONKONOGY

Imagine you are married. After many years there are problems

That night you approach your spouse. After an argument breaks

out, you tell your spouse that you are leaving them. But they get

angry. They get so enraged that they attack you in the basement

of your marital home. “You’re never going to go anywhere [,]” they

say, strangling you.

In 2011, Laura Panek’s husband attacked her, tied a rope

around her neck, and attempted to strangle her.

Miraculously,

she survived the near-death ordeal.

Laura’s husband pled guilty

end, justice was not served. Concerning the parties’ marital

assets, the judge awarded Laura’s abuser-spouse a significant

portion of her pension fund.

Laura was forced to make monthly pension distributions to her ex-

husband while he continued serving his prison sentence for

attempting to kill her.

Domestic violence comes in many shapes and sizes, devastating

all types of communities regardless of age, sex, or economic

status.

States, 25% of women and 10% of men will experience domestic

violence by their intimate partner in their lifetime.

to the physical and emotional impact, victims also face financial

survivors face.

Laura’s story reached former New York State Senator David

Carlucci, who proposed a bill to amend the Domestic Relations

Law of New York.

violence victims are protected from having to pay their abusers,

[by] adding certain restrictions on the equitable division of

assets.”

victims in divorce court by prohibiting spouses convicted of

domestic violence from receiving awards in the form of marital

right to equitable distribution of assets with the parties that they

have been convicted of domestic violence [ ] against.”

Mandating

that domestic violence be made a formal consideration would

In its proposal to amend the Domestic Relations Law, the New

York Senate drew inspiration from legislation enacted in

California, which advocates for domestic violence victims in

divorce proceedings.

Section 4325 of the California Family Code

(hereinafter “California Code”) creates a rebuttable presumption

that a criminally convicted abuser cannot receive spousal

maintenance from their victim-spouse.

By acknowledging the

very serious realities of abuse, the California Code shields victims

from becoming a payor of spousal maintenance.

However, the

to their abusers opened a similar door for marital property

distribution in New York.

In April 2020, the New York Legislature accepted the Senate’s

consideration of each factor to the court’s discretion, the equitable

distribution law states:

act or acts; (15) in awarding the possession of a

companion animal, the court shall consider the best

interest of such animal . . . . ; [A]nd (16) any other

factor which the court shall expressly find to be just

and proper.

lost as a result of the discretion permitted in awarding equitable

distribution. The risks surrounding judicial discretion under DRL

236 are especially apparent when courts must determine whether

the severity of abuse was “egregious enough” to support the

distribution of marital property in the victim’s favor. What pivots

the distribution of marital property in favor of the victim-spouse?

Must the abuser be criminally convicted of a heinous crime, or is a

credible history of spousal violence enough?

Therefore, as an alternative to Factor 14, this Note suggests that

equitable distribution award is no less than a set percentage of the

parties’ marital assets. In turn, this would automatically cap the

abuser-spouse’s interest in the marital assets. Like the California

ranges of felony and misdemeanor classifications. Upon

conviction, the victim-spouse would automatically receive a

mandatory minimum distribution of marital property in line with

the offense committed subject to the Penal Law. A conviction for

domestic violence of the lowest felony offense under the Penal Law

would trigger a mandatory minimum equitable distribution award

of 75% of the parties’ marital assets to the victim-spouse.

Likewise, a conviction for domestic violence of the lowest

left to the judge’s discretion. As the classification of the offense

committed by the abuser increases, so would the mandatory

percentage of marital assets awarded to the victim-spouse.

Additionally, if during a divorce proceeding a spouse makes

allegations of domestic violence for which there is no criminal

conviction, then this Note proposes that courts assess abuse claims

under the second prong. Here, the victim-spouse will have to offer

evidence of violent conduct that resulted in serious bodily injury

or evidence of a history of marital domestic violence.

If a court

victim-spouse. Judicial discretion may be used to determine the

remaining distribution of property using DRL 236 factors. Like

the California Code, the alleged perpetrator may rebut the

that deal with domestic violence. This would bring legislators

closer to ensuring that courts are consistent when interpreting the

impact of domestic violence on parties and reliably determining

equitable distribution awards.

In 1984, the Second Department in Blickstein v. Blickstein held

that a spouse’s financial abandonment of his wife should not be a

consideration in an equitable distribution because it was not so

egregious as to shock the conscience of the court.

The Blickstein

court discussed the catch-all factor, reasoning that it was included

in the law “because the Legislature was unable to reach agreement

on whether fault was to be considered under equitable

distribution.”

It was not until a year later that the Court of

Appeals declared that fault may only be considered under the

lower courts. These courts developed their own definitions of the

standard and fashioned inconsistent equitable distribution

awards. Egregiousness in the realm of domestic violence arose in

rose to a standard of egregiousness that shocked the court’s

conscience.

County Supreme Court noted that this case “cries out for

determination on that basis alone.”

However, it was only after

it considered other factors under DRL 236 that the Venkursawmy

court awarded the victim-spouse 100% of the marital assets.

First, the victim-spouse contributed almost the entire down

payment on the house and made most of the mortgage payments

throughout the marriage.

Second, she remained the custodial

favor. Even after acknowledging its strength, the court missed an

opportunity to rely on domestic violence as the decisive factor in

its equitable distribution of property.

her arm, again leaving her with permanent injuries.

The court

also noted that since 1951, the defendant slapped the victim

between fifty and seventy times a year.

The court held that the

defendant’s assault of the victim was “at the very least, egregious

and . . . must be considered in determining equitable distribution

of the parties’ marital property.”

Describing the defendant’s

conduct as “so severe and so brutal as to clearly demonstrate gross

and complete disregard of the marital relationship[,]” the court

made it a point to highlight the significantly smaller stature of the

abuser.

Even though Debeny met the egregious and shocking standard

as a result of its history of domestic violence,

to the abuser-spouse.

and inhumane treatment, the lower court found that the husband

“was verbally abusive to plaintiff on a biweekly basis; was

physically abusive and threw an ashtray at plaintiff causing a

laceration to her scalp; threatened to commit arson; and placed the

each party’s contributions to the marital property and placed

greater weight on the abuser’s sole and direct responsibility for the

joint investment portfolio throughout the marriage, noting that

the victim was simply a “caretaker of the children and the marital

residence.”

the lower court was “vested with discretion” and may distribute

marital assets any which way it deemed fit.

Orofino brings to light the problems surrounding an absence of