Does Adultery Affect Divorce in NY?

Many marriages involve adultery or cheating. If infidelity has occurred in your marriage, this is a fact your attorney must be informed about as it can have an impact on several aspects of your divorce.

Adultery as Grounds for Divorce

In the past, you could only get a divorce if you could prove a reason for it. This is called the grounds for the divorce. To get a divorce, you had to prove the reason or get your spouse to admit to the reason you were using.

Every state now has no-fault divorce. This makes it easier to get a divorce and reduces the conflict level between divorcing spouses. They no longer have to catch each other committing adultery or prove any of the other reasons for divorce. However, it is still possible to use adultery as grounds for divorce. In New York state, you have the following options available as grounds for divorce:

  • No-fault divorce if you have been married at least six months and you have experienced an irretrievable breakdown in your marriage
  • Abandonment lasting at least one year. Abandonment can be physical (a spouse simply leaving) or constructive in which a spouse withholds sex
  • Imprisonment or either spouse beginning after the start of the marriage and lasting three concurrent years or more
  • Cruel and inhuman treatment by one spouse of the other which has created a physical or mental danger to the other spouse and has made it unsafe or improper for the two to continue to live together
  • The couple obtains a separation agreement and lives separate and apart for one year
  • The couple obtains a judgment of separation and lives separate and apart for one year
  • At least one spouse commits adultery

Proving Adultery

If your spouse has committed adultery, it might seem that adultery is the grounds you should choose for your divorce. If your spouse does not admit to committing adultery, it can be a challenging grounds to use:

  • If you encouraged your spouse to cheat (if you had an “open marriage” or had reached an “understanding”), then you cannot use adultery as grounds for divorce.
  • If you committed adultery yourself during the marriage, you cannot use adultery as your grounds for divorce.
  • If you stayed with your spouse for five years or more after discovering the adultery, you cannot file for divorce using adultery as grounds.

There is also a high bar for proof in this situation. Your attorney must fully prove to the court that adultery was committed. Your own testimony about this is not sufficient, even if you walked in on your spouse and their lover in the act. You must have additional evidence, such as photographs, videos, or eyewitness testimony. To obtain this, you or your attorney generally must hire a private investigator. Doing so comes with considerable cost. If you instead choose to use no-fault divorce, or another ground such as cruel and inhuman treatment or a separation agreement, you can bypass this cost and the extra evidentiary hurdles that are in place.

That being said, choosing to use adultery as grounds for a divorce can be a tactical negotiating move. If your spouse is high profile or in the public eye, having their spouse file for divorce on the grounds of adultery could be damaging, or at the very least, cause a public relations problem. Having actual testimony given about adultery could be extremely damaging. This, in turn, comes not only with personal costs, but financial costs.

Your spouse would need to pay for damage control and could face damaging consequences in their career. Anyone with a morals clause in their employment contract would be greatly concerned. This is something you and your attorney should talk through very carefully before you say anything to your spouse about it.

Adultery and Property Division

In addition to impacting the grounds for divorce, adultery can have significant repercussions on the property division aspect of your divorce. In general, grounds for divorce have no impact on how marital property is divided in a divorce. There is one notable exception to this rule.

In New York, the court can consider “egregious behavior” by a spouse when determining property division. Under the law, adultery alone is not egregious. However, when a spouse commits adultery and utilizes marital assets to engage in the affair, that fulfills the litmus test of egregious. If marital funds are used to enable the affair or are given to the affair partner, adultery becomes an issue in property division. Examples of spending that fall into this category include:

  • Hotel costs for meeting the partner
  • Transportation costs to meet the partner
  • Vacations taken with the partner
  • Expensive dinners, activities, and outings with the partner

Additionally, if your spouse bought gifts for their partner, such as jewelry, art, real estate, vehicles, clothing, and more, this also falls into this category. Utilizing marital assets to fund an affair is considered wasteful dissipation of marital assets. Funds and assets that belonged to both of the spouses were taken and spent by one partner for the purpose of committing adultery.

The amount of money or assets the adulterous spouse used for the affair must be accounted for and then is generally deducted from that spouse’s share of the marital assets in the distribution. This can be a significant financial consideration.

Adultery and Alimony

The grounds for the divorce generally does not affect the court’s decision about alimony or spousal support; however, if alimony is the grounds for divorce, there is an exception. If adultery resulted in wasteful dissipation of marital assets, this becomes something that is considered when awarding alimony.

Adultery and Child Custody

In most instances, adultery does not affect child custody, but there are situations in which it can become a factor the court will consider. If the affair somehow directly affects the child, it can become a consideration in the best interests analysis the court will conduct for determining custody. This could include:

  • Conducting the affair has led the adulterous partner to become absent in the child’s life, not spending time with them and missing important events and milestones
  • The affair has been conducted in front of the child in a way that has caused upset or damage to the child
  • The affair partner has behaved inappropriately towards the child, or has harmed them

Adultery and Your Case at Large

Although technically adultery should not impact other aspects of your case, the simple truth is that once egregious adultery and spending is proven, it casts a pall over the adulterous spouse’s case. It’s virtually impossible for the court not to regard them as a bad actor and adopt a negative impression of them.

Based on all of this, it becomes clear that using or considering adultery as grounds for a divorce is a very strategic decision. If adultery has occurred in your marriage, it is essential that you discuss it with your attorney.


Dror Bikel

Dror Bikel founded and leads Bikel Rosenthal & Schanfield, New York’s best known firm for high-conflict matrimonial disputes. A New York Superlawyer℠ and twice recognized (2020 and 2021) New York Divorce Trial Lawyer of the Year, Dror’s reputation as a fearsome advocate in difficult custody and divorce disputes has led him to deliver solid outcomes in some of New York’s most complex family law trials. Attorney Bikel is a frequent commentator on high profile divorces for national and international media outlets. His book The 1% Divorce - When Titans Clash was a 5-category Amazon bestseller.

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