Adultery and NY Divorce
This past summer, a hack of the website Ashley Madison revealed the names of users of the website designed to facilitate extramarital affairs. Ashley Madison allegedly had around 37 million users, according to NBC News. The public release of private user information, including details on who paid to use Ashley Madison to facilitate adultery, has led to divorce filings for many couples.
Ashley Madison is far from the only way that affairs begin, and infidelity is a very real threat to the future of a marriage. If you have discovered your spouse was having an affair, or if you are concerned that your spouse could find out about your adultery, it is a good idea to speak with an experienced divorce attorney to find out more information on the effect that cheating could have on the divorce process.
Adultery in a NY Divorce
In New York, there are seven grounds for divorce that are recognized by state law. Adultery is one of the seven grounds for divorce, along with cruel and inhumane treatment and abandonment. Adultery actually used to be the only grounds for divorce recognized by the state of NY until the law changed in 1967.
While adultery is one of the stated reasons you can list when you file for divorce, many couples instead opt to choose irretrievable breakdown as their legal grounds for divorce, even when cheating occurred. Couples chose to claim they want a divorce because of a breakdown of the marriage because it can be faster and easier to dissolve the union based on these grounds rather than based on adultery.
If you do try to list adultery as the grounds for the end of the marriage, you have the burden of proving the behavior occurred. You cannot testify to prove the adultery, so will need a witness who you can put on the stand who will provide enough details that the court can conclude an affair happened. You also cannot claim adultery as grounds for ending a marriage if you encouraged your spouse to commit adultery; indicated forgiveness by having sexual relations with your spouse after discovering the adultery; stayed with your spouse for more than five years after discovering the adultery; or committed adultery yourself.
Because there are specific requirements for proving adultery, listing cheating as grounds for divorce can complicate the process of ending the marriage. There may be little or no benefit to doing this, since a judge usually will not award more alimony or a better property settlement just because your spouse cheated.
Equitable distribution rules and state guidelines used to determine a fair amount of alimony and a fair division of property are focused on financial necessity and the contributions made by each spouse to the marriage. Adultery could come into play in situations where there is proof that shared marital assets were used to provide gifts to a mistress or to support the extramarital affair- but this is not a common issue in most divorces. For most couples, proof of adultery simply does not matter when property is divided and spousal support is awarded.
When it comes to child custody, adultery is also usually not a factor, although there may be limited exceptions in cases where one spouse has engaged in an affair in front of children or where the spouse’s actions in committing the adultery have raised questions about whether he or she could provide a safe and stable home environment for a child.
If your spouse has committed adultery or if you suspect you may be caught in an affair, the adultery can matter a lot in causing your marriage to end, even if it doesn’t affect the outcome of your divorce. As soon as adultery occurs, it is a good idea to speak with a NY divorce lawyer about how you can protect your finances and take appropriate actions to ensure you get a divorce settlement you are happy with.
Even if you ultimately decide not to dissolve your marriage, you want to understand your rights so you are prepared for an uncertain future and so you will know what you are entitled to under New York’s family laws. Call a NY divorce attorney today to learn more.