NY Attorney Explains How Adultery Affects Divorce

Adultery can be the basis of a fault-based divorce

Adultery is grounds for a fault-based divorce in New York. If marital assets were spent on the extramarital affair, a New York court also may consider adultery when dividing the marital property and when awarding alimony. Depending on your specific situation, it may or may not be worth the emotional trauma of proving adultery in court. If adultery is why your family is facing divorce, White Plains matrimonial attorney, Lauren B. Abramson, Esq., can explain how local courts tend to view adultery and help you decide whether to pursue a fault-based or a no-fault divorce.

What evidence do I need to prove adultery?

Statements by the spouses are not enough to prove adultery — not even an admission by the adulterer. In a New York divorce, the accusing party must present evidence from sources other than the spouses. The additional evidence can include testimony from third-party witnesses, video or photographic evidence and explicit text messages or emails. If you plan to pursue a divorce based on adultery, our legal team helps you assemble evidence that will advance your case.

Is adultery always a valid ground for divorce?

Under the New York Domestic Relations Law, there are four situations in which the court will deny an adultery-based divorce even if adultery is proved. They are:

  • When the divorce was not commenced within five years after the plaintiff discovered the adultery
  • When the plaintiff also has also been guilty of adultery
  • When the adultery was committed by the procurement or with the connivance of the plaintiff
  • When the plaintiff has forgiven the adultery

The plaintiff’s forgiveness of the adultery can be proved merely by the continued voluntary cohabitation of the spouses after the plaintiff knew of the adultery.

How does adultery affect the financial aspects of divorce?

While adultery is a ground for divorce in New York, it usually does not play a significant role in the financial aspects of divorce. Specifically:

  • Property division — Adultery generally is a factor in the division of marital property only if the adulterer spent substantial marital assets on the extramarital affair.
  • Alimony — As in the case of property division, adultery is likely to be a factor in alimony only if the adulterer dissipated joint assets on the affair.
  • Child custody — In New York, a court’s decisions about child custody are based on what serves the best interests of the child. Adultery would be a factor in a court’s custody decisions only to the extent that the adulterous relationship would affect the child’s surroundings and home life. If the adulterer’s live-in paramour has a felony record or a history of child abuse, for example, the court would not look favorably on a custody proposal that called for the child to spend time in that household.
  • Child support — Under the New York Child Support Standards Act, parents’ child support obligations are calculated based on a formula that is designed to give children the same standard of living they would have if his or her parents were together. Adultery does not factor into that formula.

Arrange a consultation with a White Plains divorce lawyer today

If you are facing a divorce, contact Lauren B. Abramson, Esq. today to discuss your future. Our office is in Harrison, across from Saxon Woods Park, between the Hutchinson River Parkway and the New England Thruway. We’re open from 9 a.m. to 6 p.m. Monday through Friday. We offer weekend and evening meetings by appointment. Parking is free. Call us today at 914-908-6829 or contact us online to schedule a consultation.