Does Adultery Affect Alimony in New York?

Adultery in New York State

Marriage is rarely easy, it takes work to maintain good communication and a loving, happy marriage. Just ask anybody who's been in one for more than a decade and they'll tell you that you have to work at it.

Life takes many expected twists and turns; some couples take these changes in stride, while others cannot withstand the strain of a growing family, financial pressure, and sometimes even personality changes that spouses experience as they grow and change over the years.

Whether a couple is happy or not, it is not uncommon for spouses to commit adultery, though this is more prevalent in unhappy marriages. Unfortunately, extramarital relations are often the final nail in the coffin of a strained marriage.

Surprisingly, adultery is technically a crime in New York. Penal Law 255.17 states that a person is guilty of adultery when he/she engages in sexual intercourse with another person at a time when he/she has a living spouse. It is categorized as a Class B Misdemeanor. Adultery charges are rare.

If your marriage has broken beyond repair because one of you cheated, you are probably curious to know if adultery has any effect on alimony or maintenance under New York's divorce laws. Our clients frequently ask our Nassau County divorce attorneys about this, so it's a perfectly reasonable question indeed.

To learn more, contact our firm.

Adultery is a Ground for Divorce

In New York, you can seek a fault-based divorce or a no-fault divorce. If you wanted to seek a fault-based divorce on the ground of adultery, you could, however, you must prepare for a higher-conflict divorce, which would require you to produce evidence of the cheating from another source, such as a private investigator.

Higher-conflict divorces are lengthier, more costly and significantly more stressful. If you have children, you may want to reconsider this approach, unless of course the benefits outweigh the disadvantages. Even in the case of adultery, a no-fault divorce is often a reasonable alternative.

Does adultery affect alimony in a New York divorce?

When spouses divorce in New York, either spouse can ask the judge to order the higher-earning spouse to financially support the lower-earning spouse during and/or after the divorce. The spouses may agree on an amount, or they may have a prenuptial or postnuptial agreement that clearly defines the alimony terms.

If there is no such agreement, the judge will decide whether or not to order alimony. What if one spouse cheated, will that impact the judge's decision? While some states consider marital fault when awarding alimony – that is not normally the case in New York.

Generally, New York judges are not concerned if a spouse committed adultery, which is defined as having sexual intercourse with someone other than one's spouse, nor is adultery considered when dividing marital property.

However, if the adulterous spouse spent significant marital assets on their sweetheart, the judge can find this a "wasteful dissipation" of the marital assets. In that case, spending marital funds on a girlfriend or boyfriend can be a factor that influences the judge's decision regarding alimony.

Does your divorce involve adultery? To learn your rights, contact our firm for a free consultation with our experienced Nassau County divorce lawyer!