What Role Does Adultery Play in a New York Divorce?
Adultery is one of the most common yet complex issues that can arise in a divorce proceeding. In New York, adultery has both legal and practical implications for couples who are seeking to end their marriage.
Though it may be difficult to discuss these matters, understanding how adultery affects a divorce is essential for anyone considering filing for the dissolution of their marriage. From grounds for filing to alimony and property division, this post will explain how adultery impacts divorce in New York State.
Adultery as Grounds for Divorce in New York
In New York, couples can file for a fault-based or no-fault divorce, and a fault-based divorce can be granted on the grounds of adultery. If you file under fault-based grounds, you will have substantiate the grounds; for instance, if you filed on the grounds of adultery, you will need to prove that an extramarital affair or
It is important to note that fault is not taken into account during the dissolution process and will not have any bearing on custody arrangements or asset division. However, having proof may help when arguing over alimony payments or property distribution during negotiations.
Proving an Infidelity Occurred
When filing for divorce, couples must provide evidence of adultery to prove that it occurred. This proof can be provided in various forms. The following types of evidence can help bolster a claim when seeking to prove adultery:
- Phone Records
- Text Messages
- Witness Testimony
Consulting with an experienced divorce attorney can help you better prepare a case strategy. They can also help you collect evidence to substantiate filing on the grounds of adultery.
It is also important to note that even if you have proof of your spouse’s infidelity, you can not file on the grounds of adultery if you:
- Committed an act of infidelity yourself
- Waited to file for divorce for over five years after learning about the adultery
- Caused your spouse’s infidelity (i.e. paid to have someone seduce your spouse, etc.)
- Forgave your spouse verbally or by continuing your relationship after learning of the adultery
Does Adultery Affect Property Division Settlement?
When a couple gets divorced in New York, the courts must divide their assets equitably. This means that all marital assets must be divided fairly between the two parties. In dividing a couple’s assets, the courts will consider a variety of factors, including but not limited to:
- Each party’s income and property at the time of marriage and at the time of the divorce
- The duration of the marriage
- Each party’s health and age
- The loss of health insurance benefits either party will suffer
- The need for the custodial parent to maintain ownership of the marital residence
- Whether either party will be awarded spousal maintenance
- The tax consequences either party may face
- Wasteful dissipation of assets by either spouse
- “Any factor which the court shall expressly find to be just and proper” (N.Y. Dom. Rel. Law §236(B)(5)(d))
Thus, while adultery is not expressly a factor that the courts consider, it is at the court’s discretion whether they deem any other factors as relevant to the property division. Also, in many cases, a spouse who was unfaithful wastefully dissipated assets.
Wasteful Dissipation in New York Divorce
If one spouse has wasted any of these assets prior to filing for divorce, this can have an impact on how property is divided and may result in the guilty party receiving less than they would otherwise have been entitled to. This concept is known as wasteful dissipation and it applies to both spouses during a divorce in New York State.
Adultery implies that one spouse has taken funds from their marital estate to fund the affair, which would constitute as wasteful dissipation. When this happens, it is possible for the court to reallocate assets between spouses in order to make up for any losses incurred due to adulterous activity.
Does Adultery Affect Alimony?
Similarly to property division determinations, marital fault is not a factor that courts consider when calculating or deciding to award alimony. New York courts use a calculator to determine the suggested amount of spousal maintenance, and judges are allowed to increase or decrease the suggested award if the amount seems inappropriate or unjust.
In some cases, if a spouse wastefully dissipated their assets (i.e. bought lavish gifts or took expensive trips with their mistress), the court may consider deviating from the maintenance guidelines. Judges are also allowed to consider any factor they believe to be relevant (as they are with property division).
How Adultery Can Impact Child Custody
Additionally, when it comes to child custody arrangements and requests for spousal support payments, evidence of adultery can indeed play a role in those decisions as well. If the court finds that one spouse’s behavior was so egregious or untrustworthy that it impacts their ability to parent effectively or provide.
The opposing party may try to leverage the affair to influence determinations about where the children will live primarily or concerning overnight visits. However, unless the court believes that the circumstances surrounding the adultery endanger the child’s welfare, they will likely not penalize the adulterous parent.
Getting Divorced? Consult with Our Firm
Adultery is a complex issue to navigate during a divorce proceeding. If you are considering filing for divorce in New York, it is important to understand how an affair can affect the outcome of your case. At the Law Office of Dennis R. Vetrano, Jr., LLC, our experienced team is here to guide you through every step of the process and ensure that the best possible outcome for your situation is achieved.Contact us today to schedule an initial consultation by telephoning (845) 605-4330 or completing our online contact form.