In 2020, the New York State Legislature amended New York’s “Equitable Distribution Law” (Section 236 of the Domestic Relations Law) when it required New York courts, in the context of an equitable distribution analysis, to consider whether a spouse has committed an act or acts of domestic violence against the other spouse.
This author has written before, and will write again, that domestic violence takes many forms that go beyond the proverbial black eye.
Infidelity and sexually transmitted infections (“STI”) are two topics that are not foreign to the annals of marital discord. These topics confront divorce lawyers on a recurring basis. How these issues can interact with the Equitable Distribution Law is addressed in the recent decision of Justice Edmund M. Dane in N.S. v. T.S., 2025 NY Slip Op 51897(U) (Sup. Ct., Nassau Cty.).
Justice Dane’s decision in N.S. holds that the transmission of an STI by one spouse to another spouse constitutes a form of domestic violence.
In N.S., the parties were married in 2019, and have one child together, also born in 2019. The husband is currently serving a term of incarceration at Mohawk Correctional Facility in Rome, New York.
There are many facets of the N.S. case, however this article will focus exclusively on the issue of the husband’s transmission of an STI to the wife, and how that can impact equitable distribution.
The wife “credibly—and remarkably—testified that she was not engaging in sexual intercourse with any other individual but the husband,” and that she was infected by the husband as a “direct result” of his affairs. The wife’s testimony established that she tested positive for herpes simplex virus 1 (HSV-1), herpes simplex virus 2 (HSV-2), and human papillomavirus (HPV) during the parties’ marriage. She also testified that she was in “agonizing” pain after she contracted these STI’s—testimony that was “strikingly credible to the court.”
The wife’s credible testimony further established that her contraction of HPV “led to the development of cancerous cells [in the cervix], which she had to have surgically removed, and that her contraction of HSV requires her to take acyclovir—an antiviral medication—for the rest of her life.” The wife’s testimony recounted one incident in 2020 when, while she was home with the child, the husband “tried to bring another woman back to the home...After the wife confronted the husband, the other woman sped off.
The husband “never refuted” the wife’s testimony with respect to how “and more importantly from whom” she contracted the STI’s. Additionally, the husband did not deny the wife’s allegations that he was engaged in an extramarital affair. The court therefore concluded that the wife “is a victim of domestic violence.”
The court found that the husband “acted reckless” when he transmitted the STI’s to the wife “by engaging in unprotected sexual intercourse with her after having an affair.” The N.S. decision then sets forth a forceful description of the magnitude of entering into the marriage contract and the unique “relationship” that ensues after that contract is executed:
Marriage occupies sacrosanct ground...The annals of human history reveal the transcendent importance of marriage...Rising from the most basic human needs, marriage is essential to our most profound hopes and aspirations...Marriage is more than a mere contract, and once the contract of marriage is executed, a relationship is created between the parties which is regulated by law...Naturally implicit in any marriage is trust … While this court cannot stand in judgment of the husband for astraying from his marriage to the wife by having an extramarital affair, the Court can certainly consider the consequences of it. While every individual is, of course, free to make choices, one must own those choices, especially when they come with adverse consequences. Indeed, while people seek to dissolve their marriages, and while no marriage may last forever, a marriage is not a license—nor should it be treated as permission—for one spouse to contract an STI and transmit that STI to the other spouse. Stated as simply as it can be: in that instance, there must be consequences (emphasis added) (citations omitted).
Perhaps even more forceful, the decision goes on to state that the husband’s conduct constituted “reckless endangerment” not to mention a “gross deviation from the standard of conduct of a married person”:
And the husband, after engaging [i]n an extramarital affair, thereafter having unprotected sexual intercourse with the wife, constitutes the appropriate degree of recklessness to conclude that the husband committed reckless endangerment. The court finds that the risk created by the husband's conduct was foreseeable, namely, that having unprotected sexual intercourse with someone not his spouse carried with it the risk of transmission of an STI and the court concludes that the husband’s conduct created a risk of physical injury, namely, the wife's excruciating pain and the cancer cells which developed. Lastly, the husband's unprotected sexual intercourse with someone not his spouse was a gross deviation from the standard of conduct of a married person (emphasis added).
In the end, the court held “that one spouse’s transmission of a sexually transmitted infection to the other spouse constitutes a form of domestic violence.” For a multitude of reasons which included, without limitation, the transmission of the STI, the court awarded the wife 100 percent of the marital assets that are subject to equitable distribution.
To my mind, the more our courts embrace the fact that domestic violence comes in many forms, the greater the likelihood that the victims of domestic violence will have an avenue of protection. For that reason alone, the N.S. decision is perhaps far more than “just another case.”
"STI Transmission & Divorce: A Form of Domestic Violence," by Alan R. Feigenbaum was published in the New York Law Journal on January 22, 2026.
Reprinted with permission from the December 22, 2026, edition of the New York Law Journal © 2026 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited.
