adultery as grounds for divorceAdultery and Divorce in New York

Many marriages can’t survive the strain when a spouse chooses to forsake their vows and doesn’t remain faithful. If you are considering divorce after discovering an affair, as our Brooklyn divorce attorney explains there are legal issues to take into account that should be discussed with an attorney. 

The state of New York allows seven different possible reasons to file for divorce, and adultery, in particular, can be tricky because of the evidence required. In some cases, claiming adultery in court won’t actually be beneficial to you or significantly change child custody arrangements, even if it is specifically why you are seeking to end the marriage.  

Choosing Between No-Fault Divorce or Proving Adultery

Specifically filing for divorce over adultery adds a number of additional steps to the process that can be emotionally devastating, especially for children and other family members. New York now allows married couples to file for a no-fault divorce instead of using one of the other main reasons. Depending on your circumstances, this may be a better route to take.  

If the marriage has faced an “irretrievable breakdown” lasting at least six months, divorce can be granted without one of the other legally allowed faults such as abandonment, cruel treatment, imprisonment, or adultery. In most cases, neither spouse will need to present any evidence accusing the other of wrongdoing, which means less time spent in front of a judge, less of an emotional toll, and less chance for something to go wrong during the legal proceedings. 

With a no-fault divorce, you and your spouse have to come up with an agreement for the distribution of property and assets, however. If you can’t come to an arrangement with your soon-to-be-ex on how everything should be divided during mediation, then a no-fault divorce may not work. 

Potential Impacts of Alleging Adultery in a New York Divorce

If you go the route of choosing adultery as the reason to file, you will need to prove your allegations to a judge with the help of a lawyer. Unfortunately, you can’t be put forth as a reliable witness to your husband or wife’s infidelity. That means it is critical to gather eyewitness testimony from someone else who has less of a vested interest in the divorce. 

In addition to witnesses who can testify to the adulterer’s behavior and whereabouts, un-doctored photographic or video evidence of romantic contact can be extremely helpful. If the court accepts your evidence and grants the divorce, it’s important to understand how adultery can impact other aspects of this legal process.

Child Custody in a Divorce With Adultery

Proving adultery in court is unlikely to play a significant role in child custody arrangements, unless the affair has a negative impact on the children somehow, such as if the new paramour has a felony record or is abusive. Depending on the nature of the situation, the new partner could be ordered to stay away during child visitation sessions.

Property Distribution and Alimony When a Spouse Cheats

Adultery itself usually won’t change how money, property, and benefits are distributed. Your spouse having an affair doesn’t immediately entitle you to a larger portion of the marital assets in a divorce. 

However, if your husband or wife wasted marital assets on their lover, then a court may decide to change the amount of spousal support you receive after the marriage ends. If you adequately prove infidelity in court, the cheating spouse may be forced to pay you more in alimony. 

Ted Alatsas
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Trusted Brooklyn, New York Family Law Attorney helping NY residents with Elder Law and Asset Protection