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.
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:
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.
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:
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.
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.
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.
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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