A question of marital fault

In a recent court case, Alice M. v. Terrance T., wife Alice M. was divorcing her husband Terrance T., who had already been convicted of raping her during their marriage. Terrance was claiming in the divorce action that his wife had “ ‘falsely accused’ [him] of domestic violence and rape.” He asked the court to decide if he was entitled to money and some property.

In his Dec. 23 decision, State Supreme Court Justice Jeffrey S. Sunshine set out the question before the court as follows:

“The issue … is whether defendant (husband), who is serving a 40-year prison sentence following conviction of rape in the first degree against plaintiff (wife), is entitled to maintenance, equitable distribution, and counsel fees.”

The judge found it to be clear “that [Husband] seeks … to collaterally attack his criminal conviction for first-degree rape of plaintiff during the marriage.”

Judge Sunshine doesn’t allow Terrance to cast doubt on his rape conviction. Here is one reason:

Standard of proof

The rape case had been a criminal case. It was already decided that the husband had been found guilty of rape “beyond a reasonable doubt,” which is a very high standard of proof.

In civil cases like divorce, the standard of proof is lower — that is, easier to meet — than ones in criminal court. The standard in civil court is “a preponderance of the evidence.”

Since the husband had been found guilty of rape in the criminal court, where so much proof was required to convict him, the judge wouldn’t accept his argument in the divorce (civil court) case, where less proof is needed, that his wife had falsely accused him


Much of the case revolves around the question of fault, more specifically: when does one spouse’s fault (bad behavior against the other spouse) affect the amount of money and property she or he will receive from the divorce through equitable distribution (dividing marital property) and spousal maintenance (alimony)?

In partial answer to this question, Judge Sunshine referred to the case of Blickstein v. Blickstein, decided in 1984, “which is often cited in this jurisdiction for the proposition that marital fault is not, as a general rule, ‘a just and proper consideration in determining equitable distribution of marital property.’ ”

In Blickstein, the court stated that:

“It would be, in our view, inconsistent with this purpose to hold that marital fault should be considered in property distribution. Indeed, it would introduce considerations which are irrelevant to the basic assumptions underlying the Equitable Distribution Law.

‘And that: ‘fault is very difficult to evaluate in the context of a marriage and may, in the last analysis, be traceable to the conduct of both parties.’ ”

“However,” Judge Sunshine wrote, “the Court [in Blickstein] then unequivocally noted that in rare cases where the Court found that one spouse had engaged in ‘egregious’ conduct against the other spouse that it may be a factor the Court could consider in making an equitable distribution award.”

Judge Sunshine cited more recent cases, and cautioned that few actions will involve such egregious conduct — conduct that will “shock the conscience of the court.” But some have, such as ones involving extreme violence and kidnapping.

(“Conversely, conduct that courts have found not to be egregious includes adultery, alcoholism, abandonment, and verbal harassment coupled with several acts of minor domestic violence.”)

Due largely to Terrance’s horrible mistreatment of Alice, everything he asked for was denied. The court’s conclusion that he never contributed financially (having been incarcerated part of the marriage) didn’t help his case either.

New York City and Long Island-based divorce mediator and collaborative divorce lawyer Lee Chabin helps clients end their relationships respectfully and without going to court. Contact him at lee_chabin@lc-mediate.com, (718) 229–6149, or go to http://lc-mediate.com/. Follow him on Facebook at www.facebook.com/lchabin.

Disclaimer: All material in this column is for informational purposes only and does not constitute legal advice.