Anyone seeking a divorce must explain the reason for their marriage dissolution. In New York, infidelity can be grounds for a divorce.
If your spouse was unfaithful and you are looking into divorce, it is best to consult with a trained family lawyer about how adultery affects the divorce process in New York. The aftermath of a breakup is miserable enough, and dealing with the legal system while working through feelings of sadness and mistrust can be overwhelming. A skilled divorce attorney can listen to your concerns and advocate for your best interests during the marriage dissolution process.
In New York, the grounds for divorce can be fault or no fault-based. To pursue a fault-based divorce, the filing spouse must prove their partner did something that caused the marriage to fall apart. One possible ground for a fault-based divorce is adultery.
Under N. Y. Dom. Rel. Law § 170(4), adultery involves an act of sexual intercourse, oral sexual conduct, or anal sexual conduct performed voluntarily by a married person with a person who is not their spouse. The filing spouse must have evidence to back up their claim that their partner was unfaithful, which makes adultery a difficult claim to prove. The divorce-seeking spouse’s testimony is not enough. However, that does not mean that there needs to be direct evidence catching the cheater in the act. Circumstantial evidence, such as receipts, emails, phone records, and texts, may suffice. If you choose to seek a divorce based on adultery, it is best to hire an experienced family law attorney to collect and keep track of evidence on your behalf.
Evidence of adultery may have an effect on the many factors that a judge will consider when ruling on divorces. A spouse who committed adultery may be awarded less or be required to pay more in spousal maintenance (formerly known as alimony). Adultery itself does not directly affect the judge’s calculations for alimony, but the circumstances surrounding the adultery might. For example, if a cheating spouse used marital funds in their affair. The division of assets is not directly affected by adultery because New York is an “equitable distribution” state, but the circumstances of adultery may affect the determination of what constitutes marital property.
Adultery can also come into consideration when evaluating custody of shared children. Judges base their child custody decisions on the best interests of the child/ren. Adultery itself is not likely to affect a judge’s ruling, but similarly to the previous factors, the circumstances around it can. If the affair involved abusive behavior, for example, the judge’s decision may take this into account. It is essential to consult with a lawyer who is well acquainted with the divorce process and the effect adultery can have on your parental rights.
The grounds someone cites when filing for divorce in New York matter. While it may seem common sense to seek a divorce based on adultery, this fault-based ground can be hard to prove. Depending on your circumstances, filing for different reasons or on a no-fault basis may be more beneficial in the long run. It is important to consult with a qualified family law attorney prior to taking any action to protect yourself, your child/ren, and your assets. Contact The Colwell Law Group for assistance.
At the Colwell Law Group, our number one priority is always our clients. The members of our team have decades of combined experience in negotiating and trying family law cases. We are able to use our experience and our knowledge of the courts and New York family law to act as advocates for our clients. Our lawyers are dedicated to serving our clients’ best interests while also allowing them to feel heard and understood. We want to ensure that they trust us and understand why we do what we do. Colwell Law has numerous attorneys who are experienced in Family Law that can help put you at ease.
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