Ellen Gesmer

(WOMENSENEWS)–Legal experts in New York are celebrating a higher court ruling that may affect how equitable distribution is decided in cases involving marital violence.

In the first ruling of its kind at an appellate level in New York, a court has upheld a decision that awarded nearly all marital assets to a woman after her husband attacked her with a barbell.

In the case of Havell v. Islam, the Appellate Division, First Division of the New York State Supreme Court, agreed that Theresa Havell should retain the entirety of the couple’s assets, valued at $17 million, and called Aftab Islam’s assault against his wife “so egregious as to shock the conscience.”

The attack, which followed years of physical and mental abuse by Islam, came on April 22, 1999, when Islam snuck into his wife’s room and repeatedly smashed her in the head with a 10-pound barbell. Havell, who had asked her husband for a divorce a week before, was conscious at the time of the attack and “observed her blood, teeth and bone splattering everywhere,” according to court documents.

After Havell’s screams brought three of the couple’s six children into her room, Islam continued his attack on his wife with a lead pipe, and at one point, told the children he had killed their mother.

Islam was sentenced to eight and a quarter years for the attack, yet attempted to retain 40 percent of couple’s assets in the divorce proceedings.

Complicating matters for Islam’s civil lawyer was Islam’s checkered employment history. A former Citibank executive, Islam had not worked for the last nine years of his marriage, while Havell continued to run a successful money management firm, earning almost $900,000 a year.

Islam’s lawyer claimed in the divorce trial that he was a “house husband,” but testimony by family members revealed that he was virtually uninvolved in his children’s lives, was often abusive to them, and spent most of his time gardening, reading and writing.

The divorce trial court decision, handed down in August 2001, awarded full assets to Havell, with the exception of a previous payment of $377,500 that she had been ordered to pay during the trial to Islam to help in his criminal defense legal fees.

The recent appellate ruling upheld all of the trial court’s decisions, stating that the trial judge had been fair in the allocation of the couple’s assets.

“In New York, abusers have long thought they may face criminal penalties, but they are not likely to be harmed economically,” says Ellen Gesmer, Havell’s attorney. “This case says there will be an economic impact if you are violent towards your spouse.”

Now serving out his sentence in an upstate New York prison, Islam has filed papers to challenge the appellate court’s decision.

Determining Marital Fault Is Often Difficult

Equitable distribution laws in regards to marital fault such as domestic violence vary from state to state. In California, for example, strict divorce laws generally call for a 50-50 split of assets, regardless of behavior. Even if a husband kills his wife, he will still retain half of the couple’s assets.

In New York, courts generally do not consider marital fault when divvying up equity, the theory being that marital fault is a thorny issue.

“In the dissolution of a marriage, it’s often hard to prove one factor, or instance of marital fault led to the divorce,” says Joanna Grossman, an associate professor at Hofstra University. “Even if there is infidelity, for example, there could be outside factors that led to the affair.”

The only time New York courts will consider marital fault in regards to equitable distribution is if the fault falls under the grounds of being “so egregious as to shock the conscience,” according to state law. A handful of cases in New York have relied on that wording, awarding all equity to the wife after it was shown that the husband attempted to kill her, though none of those cases reached the appellate division in New York as the Havell case did.

Additionally, in some lower court New York cases, marital fault has been ruled to be a factor in equitable distribution if the fault, such as violence or abandonment, economically affected the spouse.

Lawyers for Islam argued on that precedent, stating that Havell was not economically affected by the attack. Although treatment for her injuries required dozens of surgeries, Havell was able to return to work part-time three weeks after the attack.

The trial court’s rejection of that argument, on the grounds that there don’t need to be economic consequences in order for egregious conduct to be applied to equitable distribution, is important, Grossman said.

Gesmer, Havell’s attorney, also acknowledges this aspect of the court ruling was significant.

“Even though Ms. Havell was seriously injured, she was able to go back to work and earn money–mostly because she is so tough and indomitable,” Gesmer says. “But the court said that even if violence doesn’t have an economic impact, that’s enough–that violence in itself, if it’s egregious enough, should have an impact on the distribution of assets.”

Groundbreaking Ruling on Domestic Violence, Equitable Distribution

During the trial court, Judge Jacqueline Silbermann allowed attorney Gesmer to introduce evidence that showed that Islam had been physically and mentally abusive to Havell during their 21-year marriage and had physically abused two of their sons.

Islam’s defense team attempted to block that evidence from trial, but Silbermann issued a response stating that “a pattern of domestic violence is a just and proper factor to be considered by the court in connection with equitable distribution.”

(In the end, Silbermann did not consider the past domestic violence evidence in her decision, allowing that Islam’s violent attack was sufficient enough to warrant a denial of assets.)

Kim Susser, director of the Domestic Violence Initiative at New York Legal Assistance Group, believes that the response issued by Silbermann is groundbreaking because it directly addresses domestic violence in regards to equitable distribution.

“Silbermann’s language is expansive,” Susser says. “This case broadens the concept of what should be considered in equitable distribution. The hope is that with more cases, more precedents, violence will be considered as a factor in dividing assets.”

Still, courts have a long way to go in considering domestic violence in regards to equitable distribution, Susser believes. Since most domestic violence doesn’t fall into the category of attempted murder, but consists of misdemeanor crimes such as hitting, shoving and pushing, how the Havell ruling will play out in cases where domestic violence isn’t as severe, nor the money pot quite so large, remains to be seen.

Gesmer agrees it’s too soon to predict how the Havell case will impact future rulings.

“The standard says that fault has to shock the conscience,” Gesmer says. “But what does it mean to shock the conscience? Is it if one spouse punches the other every day, or once a week? What is it that shocks our conscience? I think that definition remains to evolve.”

Dakota Smith is a freelance writer in New York.

For more information:

New York Legal Assistance Group:

Sanctuary for Families: