Can I Get a Higher Settlement if My Spouse Was Unfaithful?

Discovering that your spouse has been cheating on you can be heart-breaking, embarrassing, and painful. Finding out can also make you understandably angry. Sometimes the marriage has been irreparably damaged. It can be tempting to make them “pay” for their transgressions against you by exposing their infidelity in a public courtroom and seeking a big divorce award.

New York’s Position on Adultery in a Divorce

Depending on the source, cheating statistics range from between 20% and 50% of married people cheat on their spouses. Certainly, it happens and can trigger one or both spouses filing for divorce. In New York, there are no-fault divorces as well as fault divorces on grounds.

At the Law Office of Dennis R. Vetrano, Jr., LLC, we have extensive experience in both fault and no-fault divorces. Our attorneys can confidently represent your best interests in contested and uncontested divorces. We can also serve as a neutral third party to guide you and your spouse in a mediated divorce.

In a no-fault divorce, the marriage must be "irretrievably broken" for at least six months in order for you to request a dissolution.

In a fault divorce, there are several grounds you can cite (and prove with evidence), and they include the following:

  • Adultery
  • Abandonment of at least one year
  • Incarceration of at least 36 consecutive months
  • Cruel and inhuman abuse

Since adultery is an official fault ground in New York divorces, you might assume that means you can really punish them through the court process but that’s not exactly the case. Generally speaking, cheating will not provide you a big divorce payday. Infidelity is not usually a factor when a judge determines whether to grant spousal support. If the judge does award alimony, the adultery may not affect the amount awarded.

The courts award support when there has been “egregious” behavior by the other spouse. You may think of your spouse’s affair as egregious, but the court won’t necessarily agree. If you can show that they used substantial marital assets to fund their affair, the court can consider that behavior as wasteful dissipation. If so, the judge can take that into account when making their decisions on spousal support and property division.

The affair also is not a factor in child custody or child support decisions. New York law requires that the best interests of the child be the guiding principle in custody decisions. Unless the child is unsafe with one of their parents, New York believes it’s in the child’s best interests to have a relationship and time with both parents. Infidelity alone is not a determining element.

Using Adultery in Divorce Negotiations

Your spouse may not have to pay alimony or give up more of the marital property because of their philandering ways, but you can still use it to your advantage.

Whether it is guilt or their wish to be with their lover, you can use the affair as leverage when negotiating a settlement outside of court. Hashing out your differences in a lawyer’s office versus a courtroom has other benefits. What was private information about your lives, not just the affair, are part of the public record in a courtroom. Litigated divorces are emotional and difficult for both spouses and can more profoundly impact children.

Nonjudgmental and Pragmatic Legal Representation

Our firm understands the anger, fear, and uncertainty that often surrounds any divorce. We will walk through the pros and cons of your particular case so that you can better assess whether going to court is worth it financially and emotionally. Even in cases of adultery, filing a no-fault divorce may be the most effective – and quicker – route to moving forward and putting the marriage behind you.

If you are considering divorce, reach out to us through our online form or by calling (845) 605-4330. We offer phone and video consultations for your health and convenience.

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