New York State Divorce Laws When a Spouse Has an Affair

By Beverly Bird

Until 1967, adultery was the only grounds for divorce recognized by New York. The state’s code defines it as sexual intercourse between an individual and someone other than her spouse after their date of marriage, so an affair qualifies if the relationship was sexually consummated. However, the rest of New York’s laws pertaining to this divorce ground are not quite as simple.

Proving the Grounds

In New York, the spouse alleging abuse as divorce grounds has the burden of proof to convince a judge that the affair occurred and that it was sexual in nature. This can be a tricky process because Section 4502 of New York’s Civil Practice Law and Rules does not allow an individual to testify against his spouse in a divorce litigation when his grounds are adultery. Proving adultery is further complicated because judges tend to take the testimony of other witnesses with a grain of salt, as the witnesses might be friends or family members wanting to help the injured spouse. New York courts generally require a spouse who alleges adultery to prove that his partner had the opportunity, the intent and the inclination to stray. Opportunity means she was alone with her paramour for an extended period of time. Inclination means she displayed a romantic interest in her paramour, either in public or through other contact such as text messages or emails. Intent means she deliberately went out of her way to meet with him privately and commit the adulterous act.


New York’s statute of limitations on alleging adultery in a divorce complaint is five years. A spouse cannot discover his partner’s affair, continue living with her and wait for a better time to actually file for divorce if that time is more than five years later. The court will assume he forgave her for the adulterous act. Legally, he has condoned the affair. An exception exists if he honestly did forgive the affair, then his partner strayed a second time. In this case, the statute of limitations begins with her second offense.

Divorce is never easy, but we can help. Learn More

Effect on Property and Alimony

Even if a spouse is successful at proving adultery in a divorce action in New York, she might not gain anything from it. Technically, judges cannot consider adultery when deciding issues of spousal support or property distribution. For example, if a wife is guilty of an infidelity but her income is such that she requires alimony for a period of time after the divorce, the wronged husband would still be obligated to pay it. Economic need trumps marital fault. However, if the wife spent marital money on her paramour, a judge would likely compensate the husband for this if he could prove it. He might receive a greater percentage of marital property in the divorce to make up for this money that the marriage lost.


New York law allows a spouse to defend herself against allegations of adultery in divorce court. In addition to arguing that her spouse condoned her affair, she might also try to prove that he consented to it at the time it occurred. If the injured spouse also has an affair after learning of his partner’s infidelity, New York law calls this recrimination. If his partner can prove recrimination, the court won’t grant the divorce on a ground of adultery.

Divorce is never easy, but we can help. Learn More
Tennessee Divorce Laws on Adultery


Related articles

How to Prove Adultery for Divorce in South Carolina

Adultery is considered a criminal offense against morality and decency under South Carolina law and can be punished by a fine of up to $500 or six months in jail. It is rarely prosecuted, but adultery is frequently used as grounds for divorce in family court. The state Code of Laws defines adultery as two people having sex or living together when at least one of them is married to someone else. According to case law, you do not have to prove your spouse has sexual intercourse with another person; however, you must prove that he had inclination and opportunity.

Adultery & Divorce in Georgia

If your spouse engages in an extramarital affair and you want to sue her for divorce because of it, you might be more successful if you don’t live in Georgia. The state’s laws regarding adultery are somewhat restrictive, and proving your spouse’s indiscretion might be difficult as well. If you’re successful, however, it can have a significant impact on the outcome of your divorce.

Adultery & Legal Rights

Adultery is considered a crime in some states, although spouses typically don't go to jail over it. If you or your partner has strayed, more pressing concerns are how it might affect your divorce and what rights you have when it comes to defending yourself or receiving recompense for it as an innocent spouse. The effect of adultery on your divorce depends a great deal on what state you live in.

Get Divorced Online

Related articles

Does Cheating Affect Divorce in Pennsylvania?

The state of Pennsylvania recognizes adultery as a fault ground for divorce. This means it is the adulterous spouse's ...

Adultery Laws and Alimony

Your spouse’s adulterous relationship may bring an end to your marriage, but it is not always a significant factor in ...

Adultery Divorce Laws

In 2010, New York became the last state in the country to adopt no-fault divorce. No matter where you live, you no ...

Alienation of Affection Divorce Laws

Alienation-of-affection laws reflect the outdated concept that if a spouse strays, a third party must have lured her ...

Browse by category
Ready to Begin? GET STARTED