In New York state, adultery – which is defined as one spouse having sex with someone else while married, without the consent of the other spouse – can be listed as a reason for you to file for divorce. However, if adultery is the cause of your divorce, you have the option of filing for divorce based on adultery or on no-fault grounds; the results of your divorce will likely be similar, either way.
New York, like other states, requires a legal reason – called grounds – to grant your divorce petition. The grounds you are claiming are listed in your petition and your spouse has the right to dispute what you have listed. New York now recognizes no-fault grounds in which you only have to show there has been an irretrievable breakdown of the marriage, but there are other grounds you can use, including adultery. Though all grounds result in the same type of divorce, no-fault grounds are more commonly used in New York.
Burden of Proof
The burden of proving the alleged grounds is on the spouse who files for divorce. If you are the one who files and you allege adultery as your grounds, you may find it difficult to prove. In most cases, the law requires that someone other than you must actually see your spouse committing adultery and must come to court to testify about it. Finding a witness may be impossible in your case, so you may need to allege no-fault grounds to get the divorce.
New York is an “equitable distribution” state, which means the courts divide property among spouses in an equitable – though not necessarily equal – manner. Even if you prove adultery as your grounds for the divorce, adultery doesn’t necessarily mean you will receive more property. New York courts require you to show that your spouse’s behavior was egregious before it can be considered relevant to the division of property, and egregious behavior is usually found only in cases where a spouse was extremely violent toward the other spouse.
Adultery generally has no effect on the court’s child custody or support order. New York courts award custody based on the best interests of the child, and a spouse who cheats is not necessarily an unfit parent. The court may not consider your spouse’s adultery at all, unless it impacts your children. For example, if your spouse involved the child in the cover up of his affair, the judge might consider that behavior. However, in most circumstances, it won’t be relevant.