Adultery in New York: Does Cheating Affect Alimony?

Learn whether an extramarital affair can affect spousal support in New York.

Unfortunately, adultery is a common cause for spouses to separate and divorce. In many states, including New York, the court may consider adultery by a spouse in different aspects of the divorce.

This article explains the law in New York regarding adultery and how it may come into play in your divorce. If you have questions beyond this article, you should contact a family law attorney for advice and ensure you protect your rights during the divorce process.

Adultery as a Legal Ground for Divorce in New York

In New York, divorcing spouses may seek a "no-fault" divorce or a "fault" divorce. In a "no-fault" divorce, the filing spouse only needs to show that the marriage has been "irretrievably broken" for at least six months. This basically means that the couple can't get along anymore or remain married because of their differences. A no-fault divorce is one of the least expensive methods for divorce in New York.

For a "fault divorce," the filing spouse must show one of the following:

  • cruel and inhuman treatment (such as physical or mental abuse)
  • abandonment for at least one year
  • incarceration for at least three consecutive years, or
  • adultery. (N.Y. Dom. Rel. § 170.)

In New York, adultery occurs when you have sexual intercourse with someone other than your spouse. (N.Y. Dom. Rel. § 170 (4).) If you're seeking a divorce based on adultery, you must prepare for a higher-conflict divorce case than if you were to leave adultery out of the process.

The law requires that you provide evidence of adultery from a third-party, such as a private investigator. You have to provide this evidence to a judge and prove that the adultery occurred and that it caused the divorce.

These types of high-conflict divorce cases cost more to resolve and often cause more emotional harm on the parties, especially when children are involved. As a result, a no-fault divorce is a good alternative, even when there has been adultery.

Overview of Alimony in New York

During the divorce process, one spouse may ask for alimony, which is financial support from one spouse to the other during and/or after the divorce. Spouses can agree both the amount of support (if any) and the duration, or the couple may have a pre-nuptial or post-nuptial agreement that sets out alimony payments.

If they can't reach an agreement, one spouse can file a motion (formal request) for alimony and set the matter for a hearing in front of the court. The judge assigned to the case will look at many different factors to decide alimony. In New York, the court may refer to these payments as "alimony," "maintenance," or "spousal support."

In deciding alimony, the court will look at the following factors:

  • income and property of both spouses
  • how long the marriage lasted, including any time the couple lived together before and after the marriage
  • age and health of both spouses
  • present and future earning ability of each spouse, including a spouse's reduced earning ability due to delaying of education or career opportunities, and inability to earn due to age or absence from the workforce
  • need for one spouse to gain education or training in order to become self supporting, and how long this might take
  • acts that prevent a spouse's ability to gain employment or increase earning ability (for example, mental or physical abuse)
  • where the children from the marriage will live
  • any need to care for family members other than children
  • any need to pay for exceptional expenses, such as schooling and medical care for children
  • tax consequences to each spouse resulting from paying or receiving alimony
  • the overall marital property division in the divorce
  • loss of health insurance due to the divorce
  • contributions and services by the spouse seeking alimony, such as homemaker contributions, and
  • any wasteful dissipation (use) of marital property by either spouse or unfair transfer or hiding of assets. (N.Y. Dom. Rel. § 236 (B)(5)(h).)

There is no fixed formula for the judge to use when deciding alimony. Both parties will present evidence to the judge in support of their case, and the judge will make the decision based on an assessment of the entire set of circumstances.

Does Adultery Impact Alimony in New York?

Marital fault, which includes adultery, is not commonly something a judge considers when awarding alimony. In particular, infidelity will not automatically result in an award of alimony. In New York, courts will look for "egregious" behavior or acts by a spouse when considering alimony awards, and courts have found that adultery by itself is not "egregious" enough.

Will Adultery Impact Property Division?

In most cases, a judge will not consider one spouse's infidelity when deciding how to divide marital property. In New York, the law requires judges to divide marital property equitably, which means fairly, between the spouses. (N.Y. Dom. Rel. § 236 (B)(5)(c).)

One exception to this rule may occur if one spouse commits adultery and uses a large chunk of marital assets on a lover (for example, on gifts, vacations, or hotel rooms). In that case, the judge may find the spouse's spending to be a "wasteful dissipation" of the marital assets. The adulterous activity would then become one factor the judge considers in making the alimony award and possibly ordering that the cheating spouse reimburse the other.

Does Adultery Impact Child Custody or Child Support?

Adultery generally will not impact custody. However, the court's primary concern in custody cases is to protect the children's best interest. If you or your spouse expose the children to a new partner and that person is harmful or dangerous, it could impact the overall custody award. Adultery will not affect child support.

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