You’ve discovered that your spouse has been having an affair for months and feel confused, angry, and betrayed. After a while, you decide that the marriage is irretrievably broken and want a divorce. How will your spouse’s adulterous behavior affect the divorce process?

Before 1967, adultery was a major factor in a New York divorce because it was the only legally approved reason for dissolving a marriage. It also was (and still is) a Class B misdemeanor under NYPL 255.17, although it is extremely rare today for a person to be arrested solely for adultery. If one spouse could prove that the other one had sexual intercourse with someone else, he or she could successfully file for divorce.

Adultery is still grounds for divorce in New York State. If your spouse was unfaithful, you could petition to end the marriage for that reason, but these “at-fault” divorce cases tend to be high-conflict. Bitter feelings are stirred up, and when you provide the required evidence of adultery from a third party, the resulting emotional turmoil can be especially devastating for your children.

For this reason, a better alternative is to opt for a no-fault divorce, which means that you and your spouse have irreconcilable differences and can no longer remain married. All you have to do is to get a divorce in New York State is prove that the relationship has been in a damaged state for at least six months.

What about spousal support and property division?

Contrary to common belief, New York courts don’t automatically take adultery into account when deciding whether to award spousal support or how the marital estate should be divided. For example, if your spouse had an affair but is not economically self-sufficient, you would still be obligated to support him or her financially. But if he or she used a joint credit card or the funds in a marital bank account to buy gifts or vacations for his or her new partner, you could receive a greater portion of marital property to compensate you for the lost money. Courts regard such behavior as a wasteful dissipation of marital assets and frown on it.

New York courts only look out for “egregious” acts or behavior by a spouse when deciding alimony. For example, when one spouse is involved in an extramarital affair and uses a significant portion of marital assets—gifts, hotel rooms, or vacations—on a lover, the court may find this to be a “wasteful.”

If your spouse has been unfaithful and you feel that divorce is your best option, your next step should be to contact a New York divorce attorney. Although seeking an at-fault divorce can be complicated, your attorney will advise you if it is the best route for your situation and help you reclaim any marital assets that your spouse’s infidelity may have dissipated. If you are considering divorce, then contact Jayson Lutzky. He is a Bronx divorce attorney with over 34 years of legal experience. Call 718-514-6619 to set up a free in-person initial consultation.