Adultery in New York – Does It Affect Alimony In Divorce

by ECL Writer
Proving Adultery in New York

You might be wondering whether adultery would have an impact on your divorce case in New York if you and your husband are facing the end of your marriage as a result. If you reside in New York, you have the choice to divorce your partner due to adultery. A spouse must have grounds for the divorce, sometimes referred to as a basis for the divorce, in order to initiate the divorce procedure in New York. In New York, a divorce action is a civil lawsuit, and the reasons must be specified in the complaint. Adultery is one of the grounds for divorce in New York.

In this post, Eastcoastlaws.com will outline all you need to know about adultery in New York and whether it has an effect during divorce or after divorce.

Is Adultery a Crime in New York?

Yes! According to New York State Penal Law Section 255.17, having sex with someone else while having a spouse who is still alive, or while that person’s spouse is still alive, constitutes adultery. A class B misdemeanor, adultery carries a maximum sentence of three months in jail or one year of probation. Although it is illegal to cheat on your marriage in New York State, neither you nor your husband will likely be arrested anytime soon. Despite being a crime “on the books,” adultery is typically not punished in New York State. Being the victim of an unfaithful spouse, however, might give you a financial benefit in divorce court since it may affect spousal support as well as the fair division of assets and debts.

What Role Does Adultery Play in a New York Divorce?

Adultery can play a role in a New York divorce as it is considered grounds for divorce in the state. According to New York Domestic Relations Law section 170, a person can file for a divorce on the grounds of adultery if their spouse has engaged in sexual intercourse with another person outside of the marriage.

However, it is important to note that the act of adultery itself does not automatically result in a divorce. The person filing for divorce must provide evidence to support their claim of adultery, and the divorce court will take this factor into consideration when making decisions regarding the division of assets, alimony, and child custody.

In New York, the court follows a no-fault divorce system, meaning that the reasons for the breakdown of the marriage are not relevant in the divorce proceedings. Adultery can still play a role in the outcome of the divorce, but it is not the sole determinant. The court considers various factors such as the length of the marriage, the financial situation of both parties, and the best interests of any children involved.

It is also worth noting that in some cases, a spouse’s infidelity can have an impact on their ability to receive alimony or spousal support. The court may take into consideration any financial contributions made by the adulterous spouse to the relationship of the other party and may reduce or eliminate alimony accordingly.

(N. Y. Dom. Rel. Law § 170(4) (2022).)

Proving Adultery Claims in a New York Divorce

In a New York divorce, if a spouse claims that the other spouse committed adultery, they must provide evidence to support their claim. Proving adultery can be challenging, as it often involves private matters and can be difficult to gather evidence.

The following methods can be used to prove adultery in a New York divorce:

  • Direct Evidence: This includes photographs, videos, eyewitness testimony, or admissions from the accused spouse. Direct evidence is considered the strongest type of evidence, but it can be difficult to obtain.
  • Circumstantial Evidence: This includes circumstantial evidence that suggests the occurrence of adultery, such as unusual behavior, change in routine, or suspicious phone or credit card records. Circumstantial evidence can also be used to support a claim of adultery, but it can be less convincing than direct evidence.
  • Testimony of Third Parties: Third-party testimony, such as that of a private investigator, can be used to support a claim of adultery.

In a New York divorce, the standard of proof for adultery is a preponderance of the evidence, meaning that it is more likely than not that the spouse committed adultery. If the spouse claiming adultery is unable to provide sufficient evidence to support their claim, the court may not consider it in their divorce proceedings.

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 adultery, such as paying someone to seduce your spouse.

(N. Y. Dom. Rel. Law § 171 (2022).)

Can Adultery Affect Alimony Awards in New York?

Adultery can potentially affect alimony awards in a New York divorce. According to New York Domestic Relations Law section 236(B)(6)(d), the court may consider a spouse’s infidelity as a factor in determining the amount and duration of alimony.

If a spouse has engaged in adultery and the court finds that this infidelity has caused economic harm to the other spouse, the court may reduce or eliminate the amount of alimony awarded to the adulterous spouse. This is because the court considers the contributions made by each spouse to the marriage, including any financial contributions when making decisions regarding alimony.

It is important to note that the act of adultery itself does not automatically result in a reduction or elimination of alimony. The court will take into consideration various factors when determining the amount and duration of alimony, including the length of the marriage, the financial situation of both parties, and the best interests of any children involved.

In New York, the court follows a no-fault divorce system, meaning that the reasons for the breakdown of the marriage are not relevant in the divorce proceedings. However, the court may still consider a spouse’s infidelity as a factor in determining the amount and duration of alimony.

Could Adultery Affect Property Division in a New York Divorce?

Adultery can significantly affect not only the grounds for divorce but also the property split portion of your divorce. In general, the division of marital property in a divorce is unaffected by the grounds for divorce. This rule has one major exception. In New York, the court may take into account a spouse’s “egregious behavior” when deciding how to divide the property. Adultery alone is not outrageous in the eyes of the law. However, it meets the criteria for being egregious when a spouse has an affair and uses the marital property to finance it. Adultery becomes a factor in property split if marital money is provided to the affair partner or used to facilitate the affair.

Furthermore, this also applies if your spouse purchased gifts for their partner, such as jewelry, artwork, real estate, cars, clothing, and more. The wasteful squandering of marital assets is the act of using marital funds to support an affair. One partner took and spent money and assets that belonged to both spouses in order to engage in adultery.

The amount of money or assets that the adulterous spouse used for the affair must be reported, and then, in the distribution, that amount is typically subtracted from that spouse’s portion of the marital assets. This may be a very important financial factor.

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

Judges must consider what would be best for the children when making judgments about child custody and parenting time (visitation) in New York, as in all other states. Domestic abuse or a parent’s drug or alcohol abuse are examples of marital faults that can surely influence custody choices because they could negatively impact the child’s welfare. However, a judge’s decision regarding parenting time or where the child will reside the majority of the time is not likely to be impacted by a parent’s adultery. In view of the significance of children maintaining a relationship with both of their parents, unless doing so would be harmful, this is particularly true. A married individual having an affair does not automatically preclude them from becoming a good parent.

However, if a parent’s extramarital connection involves abusive behavior or if a parent entirely cut off contact with the child as a result of the relationship, a judge would possibly take these factors into account if they harm the child’s welfare.

The formula used to determine child support in New York is outlined in the state’s child support rules. The calculation is mostly based on the parent’s combined income, the number of dependent children, and a few supplemental costs. Either parent’s infidelity won’t affect which of them will pay support or the quantity of the payments because the support payments are intended for the children’s needs—not as a reward or punishment for the parents’ behavior.

Approaching Divorce After Adultery

Finding out that their spouse has had an extramarital affair may be upsetting for many people. However, if you’ve made the decision to divorce your spouse as a result, you should be aware that this is not a wise course of action. Divorce will inevitably cost more, and the entire process will be more unpleasant for both you and your children. Additionally, it would prevent you from obtaining an uncontested divorce in New York, which is typically far quicker, simpler, and less expensive than a conventional fought divorce.

Despite these disadvantages, you should see a lawyer if you believe that filing for divorce on the grounds of your spouse’s adultery will benefit you. To determine if it will be in your best advantage to file for a fault-based divorce, consult with a qualified local family law attorney. The kind of evidence you’ll need to prove your claims and persuade a court that your spouse’s infidelity should have an impact on choices about alimony or property division must be prepared and presented by a lawyer if you ultimately decide to go down that path.

Similar to this, whether or not you actually had an extramarital affair, if you’re the one being accused of adultery in a fault-based divorce, you’ll almost certainly need a lawyer to safeguard your interests and secure a fair result.

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