In Howard S v Lillian S, ___NY3d ___, No. 71 (2010) the plaintiff husband and defendant wife were married in May 1997. Defendant had one child from a previous relationship, who was later adopted by plaintiff. Three other children were born during the marriage The youngest child, born in 2004, was the product of an extramarital affair between defendant and an unidentified man. Plaintiff, unaware of his wife's infidelity until the child was over three years old, raised that child as his own. Plaintiff alleged that, although defendant knew or should have known that the child was not plaintiff's, she withheld that information from him. In 2007, defendant allegedly commenced another extramarital affair with an individual who was initially named as a co-respondent in this action. Plaintiff confronted defendant with his suspicions of her infidelity, but she denied that she was unfaithful. Defendant maintained that there were no grounds for divorce and the parties entered into the collaborative law process at her suggestion. Several months later, plaintiff obtained the results of a DNA marker test revealing that he was not the biological father of the youngest child. Soon thereafter, plaintiff commenced an action for divorce, based on cruel and inhuman treatment and adultery, and he interposed a cause of action for fraud. The fraud allegations stated that defendant represented that she had been faithful to plaintiff and that he continued to participate in the marriage in reliance upon those representations to his financial detriment. He sought to recover damages under the fraud claim based upon costs he incurred due to defendant's failure to disclose her adultery. Plaintiff sought equitable distribution of the marital property, alleging that the bulk of the property should be awarded to him due to defendant's egregious fault. Defendant moved to dismiss or sever the fraud cause of action and plaintiff cross-moved for liberal discovery relating to his fraud claim and to the issue of defendant's egregious fault for purposes of equitable distribution. Supreme Court denied defendant's motion to dismiss and found that the complaint stated a cause of action for fraud, but limited plaintiff's available damages to his pecuniary loss in the form of collaborative law process fees. The court also denied plaintiff's cross motion for liberal discovery, finding that defendant's actions did not rise to the level of egregious fault. A majority of the Appellate Division affirmed, agreeing that defendant's behavior did not constitute egregious fault such that it could be considered for purposes of equitable distribution (62 AD3d 187 [1st Dept 2009]). The Court further found that plaintiff could only pursue his claims of actual pecuniary loss under the fraud cause of action and rejected the claims for lost profits, child support and punitive damages.

The Court of Appeals, in an opinion by Judge Lippman, affirmed noting that Domestic Relations Law § 236 (B) (5) (d) sets forth the factors a court must consider when making an equitable distribution award. The statute does not specifically provide for consideration of marital fault, but does contain a catch-all provision that allows a court to consider "any other factor which the court shall expressly find to be just and proper" (Domestic Relations Law § 236 [B][5][d][14]). He explained that in O'Brien v O'Brien, 66 NY2d 576, 589-590 [1985] the Court had previously rejected the notion that marital fault is a "just and proper" factor for consideration, except in egregious cases which shock the conscience of the court, This rule is based, in part, upon the recognition that marriage is, among other things, an economic partnership and that the marital estate should be divided accordingly. In O’Brien the Court also observed that "fault will usually be difficult to assign and that introduction of the issue may involve the courts in time-consuming procedural maneuvers relating to collateral issues. Judge Lippman observed that although the Court of Appeals had not had occasion to further define egregious conduct, courts have agreed that adultery, on its own, does not ordinarily suffice. This makes sense because adultery is a ground for divorce, a basis for ending the marital relationship, not for altering the nature of the economic partnership.