April 24th, 2012
Justice Palmieri in the Supreme Court located in Nassau County, New York, has rendered an unusual decision in a divorce case. Divorce Law in New York does not make fault a factor in equitable distribution of assets unless there is “egregious marital fault.” In this case, the wife’s husband of ten years had been convicted of sexually molesting her eight year old granddaughter from another marriage. The attorney for the wife sought to make an inquiry with the husband with regard to his conduct being a potential factor in the equitable distribution of the property. The husband’s attorney brought a protective order application alleging that this conduct is not material to the equitable distribution of assets.
Sexual Abuse Is Egregious Fault
Judge Palmieri, in his decision, stated “it cannot be seriously argued that this could never be a sufficient basis…for finding ‘outrageous’ or ‘conscious shocking’ conduct no matter what disclosure of the underlying facts might reveal.” He therefore, allowed the discovery of material to develop the facts in this situation.
Mrs. G stated that after her husband was convicted she had a nervous breakdown. She was forced to take medication which prevented her from functioning properly. She needed therapy, but could not continue with the therapy because her husband refused to pay for the treatment.
Judge Palmieri in his decision stated “notwithstanding the plea, no trial Court can fairly determine whether the defendant’s conduct was sufficiently outrageous or conscious shocking to affect equitable distribution on a conviction alone.” This is due to the fact plea bargains are often the result of negotiations in which various factors come into play. The judge went on further to say “the issue is his conduct and the effect on the plaintiff and his alleged victims cannot be used as shields.”
Judge Palmieri has deviated from the established law with regard to allowing fault to be taken into consideration in the equitable distribution of assets. I presume this case will be appealed. It is my expectation that it will be reversed by the Appellate Division.
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