Adultery in New York: Does Cheating Affect Alimony?

Learn if and how an extramarital affair might affect alimony and other issues in a New York divorce.

By , Retired Judge

If you're facing the end of your marriage because you or your spouse had an extramarital affair, you may be wondering whether the infidelity could affect what happens in your divorce case. When you live in New York, you have the option of filing for divorce based on your spouse's adultery. But whether doing that would be worth it is a different story.

What Role Does Adultery Play in a New York Divorce?

In New York, as in all states, you need a legally accepted reason (or "ground") to get a divorce. The grounds for divorce in New York include both fault and no-fault reasons. Among the fault-based grounds, you may get a divorce if the judge finds that your spouse has committed adultery.

The law defines adultery as the commission of an act of sexual intercourse, oral sexual conduct, or anal sexual conduct, voluntarily performed by the defendant (the spouse being charged with adultery), with a person other than the plaintiff (the spouse alleging adultery) after the spouses were married. (N. Y. Dom. Rel. Law § 170(4) (2022).)

Proving Adultery Claims in a New York Divorce

If you file for divorce in New York based on your spouse's adultery, you'll need to prove that claim. Your testimony alone isn't enough. But you don't have to provide unquestionable evidence of the actual sexual encounters. It may be enough if the judge could reasonably infer that the adultery took place based on the evidence you provide—which could be circumstantial evidence like hotel receipts, phone record, emails, and texts. (Agulnick v. Agulnick, 191 A.D.3d 12 (N.Y. App. Div. 2020).)

But even if you have proof of your spouse's adultery, you won't be able to use it as a ground for divorce if you:

  • are guilty of adultery yourself
  • forgave your spouse, either affirmatively or simply by continuing your relationship after learning of the adultery
  • waited more than five years to file for divorce after learning about the adultery, or
  • did something to actively cause the adultery, such as paying someone to seduce your spouse.

(N. Y. Dom. Rel. Law § 171 (2022).)

Can Adultery Affect Alimony Awards in New York?

An award of alimony in New York (where it's known as "maintenance") isn't automatic. There has to be evidence that it's warranted. The court's goal in awarding alimony is to help less financially stable spouses meet their needs and, hopefully, become self-supporting. The type, duration, and amount of spousal maintenance will depend on the specific facts of your case.

Unlike most other states, New York courts use a calculator to compute a standardized, suggested amount for post-divorce maintenance. But judges may decrease or increase the award if the guideline amount would be unjust or inappropriate.

When deciding whether to deviate from the maintenance guideline, judges must look at a number of factors listed in the law, including wasteful use of marital property. A spouse's fault (such as adultery) isn't on the list, but the law allows judges to consider any other factors that they find would be fair and appropriate. (N.Y. Dom. Rel. Law § 236(B)(6)(e) (2022).)

New York courts have held that judges may consider marital fault in the financial aspects of a divorce, but only if the fault was "egregious." That means it would have to be something outrageous or shocking to the conscience, and well outside the bounds of the typical basis for an ordinary divorce action. Usually, adultery doesn't fall into this category. (Howard S. v. Lillian S., 928 N.E.2d 399 (N.Y. 2010).)

Although adultery in and of itself may not qualify as a factor in determining alimony, the circumstances surrounding it might have an impact. For example, say a cheating spouse uses marital assets to pay for lavish gifts or expensive trips with a lover. That might qualify as wasteful use of marital property that could justify a deviation from the maintenance guideline.

Could Adultery Affect Property Division in a New York Divorce?

New York is an "equitable distribution" state. This means judges will divide the couple's property in a manner they believe is fair under the particular facts of each case. It's important to note that "equitable" doesn't necessarily mean an equal 50-50 split.

New York law also lists the factors that judges must consider when deciding how to divide a couple's marital property. Much like alimony, marital fault isn't listed, but there's a catch-all: Judges may consider any other factor that they specifically find would be fair and appropriate. (N.Y. Dom. Rel. Law § 236(B)(5)(d) (2022).)

So an unfaithful spouse's use of marital assets to fund the affair is something that a judge might take into account when deciding whether it would be equitable to award the innocent spouse a greater share of the couple's assets.

Does Adultery Ever Affect Custody or Child Support in New York?

In New York, as in all states, judges must base their decisions about child custody and parenting time (visitation) on what would be in the children's best interests. Some types of marital fault, such as domestic violence or a parent's abuse of alcohol or drugs, can undoubtedly play a role in custody decisions because they could directly hurt the child's welfare.

A parent's adultery, however, is unlikely to affect a judge's decision about parenting time or where the child will live most of the time. This is especially true in light of the importance for children to have an ongoing relationship with both of their parents, unless that would be harmful. The mere fact that a married person has had an affair doesn't mean that person can't be a good parent.

That said, a judge could conceivably consider the circumstances surrounding a parent's adultery if it endangers the child's well-being—for instance, if the parent's extramarital relationship involved abusive behavior, or if a parent became completely uninvolved in the child's life because of that relationship.

Child support in New York is calculated under a formula spelled out in the state's child support guidelines. The formula is based primarily on the income of the parents, as well as the number of children being supported and certain additional expenses. Because the support payments are meant for the children's needs—not as a reward or punishment for the parents' behavior—either parent's adultery won't play a role in determining which of them will pay support or the amount of the payments.

Is Adultery a Crime in New York?

Most states have repealed their laws making adultery a crime. Not New York. Although the crime is rarely prosecuted these days, adultery is still a Class B misdemeanor under New York law. (N.Y. Penal Law § 255.17 (2022).)

Approaching Divorce After Adultery

Many people find it devastating to discover that their spouse has had an extramarital affair. But if you've decided to end your marriage as a result, you should know that it's not a good idea to use the divorce proceedings to punish your spouse. It's bound to increase the cost of divorce, and it will make the entire process more stressful, for you as well as your kids. It also means that you wouldn't be able to get an uncontested divorce in New York, which is almost always a lot quicker, easier, and cheaper than a traditional contested divorce.

Despite these drawbacks, if you think that filing for divorce based on your spouse's adultery might benefit you, you should speak with a lawyer. A local, experienced family law attorney should be able to evaluate your case and explain whether it will be in your interest to file for a fault-based divorce. And if you ultimately decide to take that route, it's critical to have a lawyer prepare and present the kind of evidence you'll need to prove your claims and convince a judge that your spouse's adultery should affect decisions about alimony or property distribution. (Here are some tips on questions to ask before you hire a divorce lawyer.)

Similarly, if you're the one being accused of adultery in a fault-based divorce, you'll almost certainly need a lawyer to protect your interests and get a fair result—whether or not you actually had an extramarital affair.