Anyone seeking a divorce must explain the reason for their marriage dissolution. In New York, infidelity can be grounds for a divorce, though as of November 2024, adultery is no longer a criminal offense in the state.
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 late 2024, Governor Kathy Hochul signed legislation repealing New York’s 1907 law that classified adultery as a class B misdemeanor. While the act is no longer a crime punishable by jail time, it remains a significant legal factor in civil divorce proceedings.
In New York, the grounds for divorce can be fault or no fault-based. While most couples now file for “no-fault” divorce (citing an irretrievable breakdown of the marriage), adultery remains a valid fault-based ground under N.Y. Dom. Rel. Law § 170(4).
Adultery involves voluntary sexual, oral, or anal conduct with someone other than a spouse. This remains a difficult claim to prove because:
The filing spouse’s testimony alone is insufficient.
Concrete evidence or third-party testimony is required.
Circumstantial evidence—such as receipts, travel records, emails, and texts—is often used to prove “opportunity and inclination.”
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. Call for a consultation.
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