Adultery is a common factor in many divorce cases in New York and across the country. If you are considering getting divorced after learning that your spouse has been committing adultery, you are not alone. Spouses in New York have the option of seeking a no-fault divorce or a fault-based divorce. In New York, adultery is a legally recognized ground for divorce. However, many people are surprised to learn that adultery does not play as large a role in their divorce as they expect.

The Difference Between No-Fault and Fault-Based Divorce

In a no-fault divorce, the spouses do not need to show fault as the reason for the divorce. Instead, they can state that they have irreconcilable differences that have lasted for at least six months and that they cannot fix their marriage. There are several different grounds for fault-based divorce in New York, such as cruel and inhumane abuse, abandonment, incarceration, and adultery.


What Constitutes Adultery in New York?

Under New York law, adultery occurs when a spouse has sexual relations with someone other than his or her spouse. The New York statute defines sexual relations broadly. Specifically, adultery includes:

  • An act of sexual or deviant sexual intercourse that is
  • Voluntarily performed by the defendant spouse with another person other than his or her spouse
  • During the marriage

As the spouse who is petitioning for divorce, you will not be able to testify in court about your spouse’s adultery. Instead, you will need to produce a witness who can present testimony to the court. The witness must convincingly testify that your spouse willingly engaged in sexual relations with another person other than you. The witness can provide circumstantial evidence, such as social media information. You can also hire a private investigator to gather video or photographic evidence of the adultery and present the evidence in court.


Defenses to Adultery in New York Divorce Cases

 Your spouse will have the right to defend himself or herself against adultery accusations in court. There are four different defenses for adultery in New York:

  • Connivance or procurement: The plaintiff either encourages the husband or wife to commit adultery or plotted circumstances that would lead to adultery. An example of this situation would be one spouse hiring a prostitute to entrap his or her spouse to cheat on them in order to file for divorce. 
  • Condonation: This defense is also called the forgiveness defense. The spouse filing for divorce knew about the adultery and either forgave the spouse verbally, in writing, or by his or her actions. Going to counseling with the adulterous spouse, not insisting that the adulterer move out or moving out oneself, and not filing for divorce for a while after hearing about the adultery would be examples of condonation
  • Consent or collusion: When the plaintiff spouse agreed to the adultery, consenting to an open marriage in which both spouses can have sexual relationships with other people, consent or collusion has occurred.
  • Recrimination: The defendant can claim recrimination when the spouse filing for divorce also committed adultery, even as an act of revenge


It’s Not Always Easy to Prove Adultery

If you would like to pursue a fault-based divorce on the grounds of adultery, you will need to present evidence that adultery took place. Many of our clients are surprised to learn that even though adultery has long been one of the most commonly used grounds for divorce, today, it is one of the least effective ways to get divorced. Even if your spouse is committing adultery in public, openly, or in front of you, pursuing a fault-based divorce may not be your best option.

As the spouse petitioning the court for a fault-based divorce, you will need to investigate your spouse and provide evidence of the affair. In the age of social media, many people assume that it is easy to prove adultery. After all, if you can show romantic Facebook, Instagram, or text messages, you may be able to prove adultery. In reality, New York courts have a high standard for what constitutes evidence of adultery. Depending on your case, it can be challenging to meet the standards.


Does Adultery Affect Alimony in Divorce?

Sometimes we meet with clients who assume that they will be able to obtain alimony because their spouse committed adultery on them. In your, alimony, also known as spousal support, is not automatic. A spouse must request alimony during the divorce process. The court will decide whether to award alimony and how much alimony they should order based on multiple factors, including:

  • The income and assets owned by both parties
  • The length of the marriage
  • The education and work experience of each spouse
  • The health of both spouses
  • Where the children live and who has primary child-care responsibilities
  • Whether either spouse must pay for extraordinary costs
  • Whether either spouse has anything that will stand in the way of being able to find employment

Adultery typically is not a factor judges consider when deciding whether to award alimony in New York. Adultery does not guarantee that the spouse who was cheated on will be awarded alimony. Nonetheless, if the spouse who committed adultery engaged in egregious conduct, the court will consider adultery. 

For example, suppose the spouse committing adultery used a significant portion of the marital assets on his or her affair. In that case, the judge may find that the unfaithful spouse engaged in wasteful dissipation of the marital estate. The fact that the unfaithful spouse drained the other spouse’s financial assets for the purpose of adultery could support the award of alimony for the victim.