In Howard S. v. Lillian S. (14 NY3d 431, 928 NE2d 399, 902 NYS2d 17 [2010]), the wife was shown by the husband to have committed adultery, to have given birth to a child during the marriage as a result of that adulterous act, and to have hidden this fact from the husband.

He claimed that this had caused him to raise the child as his own and to have made certain personal and economic decisions as a result, decisions he claimed he would not have made had he known. These included spending money on the child, taking profits from marital investments he would have deferred, and even continuing in the marriage itself.

In affirming the Supreme Court and the Appellate Division's denial, inter alia, of the husband's request for discovery on the issue of egregious marital fault for purposes of equitable distribution, the court held that the circumstances of the case were insufficient for that purpose.

It reiterated its statement in the landmark case of O'Brien v. O'Brien (66 NY2d 576, 589-590, 489 NE2d 712, 498 NYS2d 743 1985) that marital fault is not a "just and proper" factor under Domestic Relations Law § 236 (B) (5) (d) (14) for equitable distribution " 'except in egregious cases which shock the conscience of the court.'"

In Howard S., the Court stated that in order to be a factor in making determinations on the economic aspects of the marriage, the egregious conduct "must consist of behavior that falls well outside the bounds of the basis for an ordinary divorce action." (14 NY3d at 436.)

It added, however, that there may be situations where grounds for divorce and egregious conduct will overlap, but "it should be only a truly exceptional situation, due to outrageous or conscience-shocking conduct on the part of one spouse, that will require the court to consider whether to adjust the equitable distribution of the assets." (Id.)