Many marriages that end in divorce involve adultery or cheating. If infidelity has occurred in your marriage, this is a fact your divorce attorney must be informed about, because it can significantly affect several aspects of your divorce. That’s especially true if you file for divorce in New Your State – where adultery is legally still a Class B misdemeanor.
Adultery as Grounds for Divorce vs. No-Fault Divorce
In the past, you could only be granted a divorce if you could provide rather convincing evidence – such as a spousal confession. But now you can get what is called a no-fault divorce, meaning you can file for divorce for virtually any reason. You don’t have to catch someone in the act of committing adultery or prove any of the other reasons for divorce. Still, in New York, it is possible to use adultery as grounds for divorce, and if your spouse has committed adultery, then that course of action may seem like your best option.
Proving Adultery
However, if your spouse does not admit to the court that they committed adultery, this can be a challenge. There is a high bar for proof in this situation. Your attorney must provide convincing evidence to the court that adultery was committed. You don’t have to catch them in the act, but will need circumstantial evidence such as hotel receipts, phone records, texts, letters, or similar proof that they had the desire and opportunity to commit adultery.
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 or eyewitness testimony. To obtain this, you or your attorney will most likely need to hire a private investigator, which can be expensive and delay the time it takes to finalize your divorce and move on with your life. There are also some legal reasons why the court will reject your request:
- 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 schemed with or paid someone to seduce your spouse.
- 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.
On the other hand, if you choose to use no-fault divorce, or other grounds such as cruel and inhuman treatment, you can bypass these challenges associated with a divorce on the grounds of adultery.
A Negotiation Tactic
However, when adultery is substantiated, choosing to use it as your grounds for a divorce can be a tactical negotiating move. Having actual public testimony given about their adultery could be costly to the adulterous spouse financially, professionally, and personally. For instance, anyone with a morals clause in their employment contract could potentially lose their job. If your spouse is in the public eye, having you file for divorce on the grounds of adultery could be damaging to their reputation. These negotiation tactics are something you and your attorney need to discuss carefully. But do so before letting your spouse know that it is a possible approach you may take.
Adultery and Property Division
Generally, grounds for divorce will not impact how marital property is divided. But there is one notable exception to this rule. In New York, the court can consider "egregious behavior" by a spouse when determining divorce-related 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 egregiousness. In other words, if marital funds were 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 the egregious behavior 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. The value of those assets can be substantial.
Adultery and Alimony
Meanwhile, the grounds for divorce generally do not affect the court’s decision about alimony or spousal support. However, if adultery is the grounds for divorce, and was the cause of marital assets being wastefully used, that can be considered by the court 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 adversely affects the child, the court may deem that:
- 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 toward 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 disclose it to your divorce attorney.
Prenuptial Agreements
Before getting married – or remarrying after divorcing because of adultery – you may want to have an attorney create a prenuptial agreement or prenup, which dictates such things as the division of assets or alimony payments in the event of a divorce based on the grounds of adultery. That contract can be an incentive to establish trust in a relationship. It can also proactively save you from the financial costs and emotional stress related to taking a spouse to court and arguing for divorce based on their infidelity.