There are some states that do not consider any extraneous factors when
deciding to grant a divorce. However, New York is not one of those states.
Under state law, a spouse that has committed adultery can have their infidelity
used against them in their divorce case.
When a married person engages in sexual intercourse with someone that is
not their legal spouse, it is considered adultery. In order to prove adultery,
a third-party investigator may have to be used to provide evidence that
the accused spouse acted outside their marital responsibilities. If it
can be shown that adultery has occurred, the spouse can proceed with the
filing a fault—based divorce.
What difference does filing for a fault divorce make?
New York asks that a divorce filing include whether it is a fault or a
no-fault divorce. No-fault divorce means that irreconcilable differences
have kept a couple from acting in their capacity as a married couple for
at least six months. In a fault divorce, evidence must be used to prove
that the actions of one spouse has created the need for the divorce and
the divorce would not have occurred otherwise.
Some examples of what can be considered a fault for divorce:
- Three or more years of incarceration
- Cruel or inhumane treatment
- One year or more abandonment
- Domestic violence or abuse
One reason why a spouse may want to prove adultery in a divorce case is
that it can affect how alimony is determined. While spousal support is
generally meant to cover the basic needs of a former spouse as they rebuild
their life and gradually gain earning potential, there can be some instances
where infidelity during the marriage impacts payments. Furthermore, if
significant marital assets were spent maintaining this affair, the judge
may consider this a waste of assets and award the other spouse a larger
However, when children are involved, it may be better to consider a no-fault
divorce. No-fault divorce generally results in a smoother, less litigious
divorce, which is better for the children. Since it is not guaranteed
that the affair will result in more spousal support, a fault divorce may
be more trouble than it's worth.