If you and your spouse are divorcing due to adultery or infidelity issues, you are not alone. Adultery is a common reason for divorce and can impact the outcome. In New York, divorces can either be no-fault or fault-based. However, allegations alone are not enough to qualify as adultery in New York. The law specifically identifies adultery as a sexual act between a married person and someone who is not their spouse.
Separations involving adultery means that there is fault. To keep the process fair and keep the alleged adulterer from benefiting from the split, the courts will examine the facts before issuing the divorce decree.
Adultery is a serious matter, especially in divorces where there are alimony and child support considerations. It is grounds for a fault-based divorce.
Proof must exist
You must prove to the courts that evidence of your spouse’s affair or cheating occurred during the marriage. You cannot make allegations without proof. Evidence alone is not sufficient to guarantee a better divorce outcome for the innocent partner. It is up to the judge’s discretion to evaluate the circumstances to determine if the innocent spouse deserves to receive more in the divorce settlement.
There are limitations
If you remain with your partner five years after learning of their alleged infidelity, you cannot use adultery claims as grounds for your separation. Infidelity occurs for many reasons, but if you or your spouse had an open relationship or some type of arrangement that allowed extramarital affairs/relationships, you cannot use adultery as fault for the separation. Also, adultery cannot be used as grounds for divorce if you and your spouse have been unfaithful to each other.