Can Adultery in New York Affect Alimony?

It is widely known that cheating is one of the most common reasons why people get divorced. While some "no-fault" states such as California won't even consider cheating in a divorce case, in New York, the court may consider evidence of adultery; however, it depends on the facts of the case.

In New York, spouses can seek either a "no fault" divorce or a "fault" divorce. With a no-fault divorce, all that matters is that the marriage has been irretrievably broken for six months or longer. This means that the couple is unable to get along, and cannot stay married due to their "irreconcilable differences."

Fault-based divorce is filed on one of the following grounds:

  • Adultery;
  • Abandonment for one year or longer;
  • Incarceration for a minimum of three years; or
  • Cruel and humane treatment; for example, domestic violence.

New York law defines adultery as a spouse having sexual intercourse with someone other than their spouse. In order to seek a divorce based on adultery, one must be able to provide evidence of the cheating from a third-party such as a private investigator.

When a spouse pursues a divorce based on adultery, they must be prepared for a higher conflict divorce. Such divorces often cause undue emotional harm on all parties involved, especially when there are children. It is often a better option to pursue a no-fault divorce, even in cases of adultery.

How Cheating Affects Alimony

Alimony, otherwise known as "maintenance" or "spousal support" is awarded on a case-by-case basis and is determined by a variety of factors including:

  • The length of a marriage
  • The age and health of the spouses
  • The income and property of both spouses

Marital misconduct, including adultery is not usually considered by the court when dividing property and awarding alimony.

If a spouse commits adultery and spends a good portion of the marital assets on the lover; for example, expensive gifts, vacations, hotel rooms, or even rent money, the judge may find such behavior to be a "wasteful dissipation" of the marital assets.

When this happens, any such adulterous activity may become a factor when a judge considers awarding alimony.

To schedule a free case evaluation with a Nassau County divorce lawyer, contact Jason M. Barbara & Associates, P.C. at (516) 406-8381.