## Facts

- The parties married in 1978 and had six children; four were minors at trial.
- Both were highly educated finance professionals early in the marriage, but the husband became unemployed around 1990 and did not return to paid employment.
- The wife’s earnings increased substantially over time; she became the primary wage earner and accumulated significant marital assets, including multiple residences.
- Evidence showed the husband was verbally and physically abusive toward the wife and children during the marriage.
- In April 1999, after the wife stated she wanted a divorce, the husband attacked her with a barbell, causing severe and lasting injuries; the children intervened and called 911.
- The husband was prosecuted and ultimately pleaded guilty to first-degree assault and was incarcerated.
- The wife filed for divorce in May 1999. After trial, the court granted a divorce and awarded the wife approximately 95% of the marital estate, relying heavily on the husband’s egregious misconduct.
- The husband appealed, challenging the consideration of fault, the size of the award, the trial court’s description of his conduct, and the refusal to offset a separate tort claim by the wife.

## Issues

1. Whether a court may consider marital fault in equitable distribution when the misconduct is exceptionally egregious, including a near-fatal assault.
2. Whether the trial court abused its discretion by overemphasizing fault and failing to appropriately weigh the statutory equitable-distribution factors.
3. Whether it was reversible error to characterize the husband’s conduct as “attempted murder” despite his conviction for first-degree assault.
4. Whether the husband was entitled to a setoff in equitable distribution due to the wife’s pending tort action arising from the assault.

## Decision

- The Appellate Division affirmed the judgment.
- The court held that marital fault may be considered in equitable distribution in rare, egregious cases, and the husband’s attack qualified.
- The court upheld the approximately 95% distributive award to the wife as within the trial court’s discretion under the totality of the circumstances.
- The court found no reversible error in describing the conduct in “attempted murder” terms because the equitable-distribution analysis turned on the severity and nature of the conduct, not the technical criminal conviction label.
- The court held the husband was not entitled to a setoff based on the wife’s separate tort claim.

## Legal Principles

- Equitable distribution is generally not fault-based, but exceptionally egregious marital misconduct that shocks the conscience may be considered as a factor in dividing marital property.
- In egregious-misconduct cases, a court may consider the conduct itself even absent a proven reduction in the injured spouse’s earning capacity or direct economic harm.
- Appellate review of equitable distribution is deferential; a markedly disproportionate division may be sustained where supported by statutory factors and case-specific circumstances.
- In assessing fault-based considerations, the factual severity of conduct may matter more than the precise criminal charge to which a spouse pleaded guilty.
- A spouse’s separate tort claim arising from marital misconduct generally does not require an offset or adjustment to equitable distribution.

## Conclusion

The court affirmed an extreme distributive award favoring the wife because the husband’s brutal, near-fatal assault constituted egregious misconduct properly considered in equitable distribution, and neither semantic disputes about the criminal label nor a pending tort action required altering the property division.


Havell v. Islam, 301 A.D.2d 339, 751 N.Y.S.2d 449 (N.Y. App. Div. 1st Dep’t 2002)