Using Adultery as Grounds for Your Divorce May Provide You with a Strategic Advantage

The grounds for your divorce might not be something you've given any thought to because you assume you will have a no-fault divorce. In the past, you could only get a divorce if you could prove adultery or abandonment, among other grounds. You had to have an actual reason (in the courts’ eyes) for a divorce, and you had to either prove it or get your spouse to admit to it. 

Now things have radically changed, and every state has no-fault divorce, recognizing that the old rule of having to prove justification for a divorce not only made it difficult to get a divorce but caused a lot of bad will between spouses. Since no-fault divorce is universally available, there's no reason to use any other grounds for divorce, right? Not necessarily. If you're looking for a leverageable advantage in your divorce, using adultery as grounds may be the solution you've been looking for. 

New York state allows the following options as grounds for a divorce:

  • No-fault divorce for a marriage of six months in length or more where there has been an irretrievable breakdown in the relationship
  • Cruel and inhuman treatment causing a physical or mental danger to one of the spouses and making it unsafe or improper for the couple to live together
  • Abandonment of a year or more, either physically or constructively (typically means withholding sex)
  • Imprisonment of three concurrent years or more beginning after the marriage began
  • Adultery
  • A legal separation agreement paired with living apart for one year
  • A judgment of separation paired with living apart for one year

Most people assume they will employ a no-fault divorce because it is simpler (since no one has to spend time and resources proving a reason for the divorce). Grounds using legal separation are also popular, but require you to either work out a separation agreement (which may be impossible in a high conflict situation) or litigate a separation (which is not cost-effective since you're breaking the process into two litigation parts: separation and divorce). It's understandable to want to make the process as straightforward as possible, but there is a distinct advantage to choosing adultery as grounds for divorce.

Choosing adultery as the grounds for divorce can be a useful strategy because it can significantly impact how marital property is divided by the court, as well as the amount of alimony that is awarded. Generally, fault for the divorce is not considered by New York courts in making these financial decisions. There is an important loophole, however. The court can consider "egregious" behavior by a spouse in making financial decisions. 

Adultery alone is not egregious enough. Instead, you must be able to show that your spouse committed adultery and used significant assets for their adulterous partner or for the affair itself. So, if your spouse took vacations with their lover, bought extravagant gifts for them, gave them cash, flew them to visit, took them out to lavish dinners and shows, paid for an apartment or home or living expenses for them, or spent considerable sums of money on them, this reaches the point of being egregious and is considered to be a wasteful dissipation of marital assets. 

In this situation, the court can then consider adultery as a factor in your case for distributing property and awarding alimony. As a result, as the injured spouse, you become entitled to a larger portion of the assets and a larger alimony award (or if your spouse is seeking alimony, you have an excellent case for a reduced alimony award). The reasoning for this is that your spouse used or "wasted" considerable marital assets on the affair, entitling you to a larger portion of what remains to make up for what's missing.

In addition to impacting the financial aspects of the case, adultery then casts a shadow over your spouse for the entire proceedings, tainting not only their financial requests, but also coloring your custody case. Adultery is not technically a specific factor the court can consider in making a custody determination. Still, once a judge views your spouse unfavorably, this may likely taint their entire case. 

If your spouse cheated in front of your children or if their new partner has exposed your children to unsafe situations or presents some kind of danger to them, then the relationship can directly become a factor in your custody case. 

Choosing adultery as the grounds for divorce also creates crucial leverage over your spouse. He or she likely doesn't want such an impropriety aired in court, let alone in public. An accusation of adultery, let alone actual trial testimony about the details, can be devastating to your spouse's public image and career. They may be willing to agree to your terms to prevent this kind of headline.

It's important to note that proving adultery as a grounds for divorce requires more than a spouse simply accusing the other. New York law defines adultery as having sexual intercourse with someone other than their spouse. This must be proven utilizing third-party testimony. 

In most cases, that third-party is a private investigator who follows the suspected spouse and provides evidence and eyewitness testimony that adultery occurred. Additionally, financial experts and investigators will need to provide evidence that your spouse spent money on the affair or the lover.  If you have any suspicions about adultery, it's essential to share them with your attorney. 

There are a few caveats to keep in mind. You won't be able to testify about the adultery yourself. You can't use adultery as grounds if you encouraged your spouse to cheat. You also cannot rely on adultery if you stayed with your spouse for more than five years after you learned they were cheating or stated that you forgave them. If you committed adultery yourself, you are barred from using adultery as grounds for your divorce. 

 A simple change in the grounds for your divorce can substantially change your possible outcomes and change your case for the better.