The Effect of Infidelity on Your Divorce


Can Adultery Cheat You Out of an Even Divorce Settlement?

Adultery is among the most common causes of divorce. However, beyond affecting the marital relationship, infidelity could impact the marital settlement. The court could consider one spouse’s cheating when deciding on several aspects of the divorce.

Adultery as Grounds for a Fault-Based Divorce

New York couples seeking an end to their marriage could pursue a fault or no-fault divorce. The pair could proceed with a no-fault divorce by declaring that the marriage has been “irretrievably broken” for at least six months.

Fault-based divorces, on the other hand, require some proof that one spouse caused the marriage to fail. New York recognizes a number of reasons for fault-based divorce, including:

  • Abandonment for at least one year
  • Adultery
  • Cruel treatment that makes it unsafe for the couple to live together
  • Imprisonment for three or more years after marriage
  • Living apart for at least one year after obtaining a judgment of separation
  • Living apart for at least one year pursuant to a separation agreement

The infidelity could therefore give proper cause to the faithful spouse to pursue a fault divorce.

Adultery and Alimony

New York courts consider several factors when deciding whether alimony will be awarded and, if so, how much will be given. The judge assigned to your case will take into account:

  • Each spouse’s age
  • Each spouse’s earning potential, especially if either took a break from their education or career to assume the role of a homemaker
  • Each spouse’s health
  • Each spouse’s income
  • Exceptional expenses such as a child’s schooling and health care
  • How long it may take for a lower-earning spouse to gain the training necessary to pursue a job that allows them to become financially independent
  • Loss of health insurance coverage of either spouse due to the divorce
  • Property awarded to each spouse in the divorce
  • Responsibilities of either spouse to care for other family members
  • The contributions of the lower-earning spouse to the marital home, such as by being a homemaker
  • The length of the marriage and any time the couple lived together beforehand
  • Wasteful dissipation by either spouse
  • With whom children from the marriage will live after the divorce

The act of adultery itself is not considered when a judge awards alimony. However, if the unfaithful spouse spent frivolously on weekends away, dates, and gifts in their affair, the judge could find them guilty of wastefully dissipating marital assets. In this scenario, their cheating would impact the court’s decision on spousal maintenance.

Adultery and Asset Division

Wasteful dissipation also impacts how a court divides marital property. The extent to which a cheating spouse used marital funds to afford their affair will affect their allocation of shared assets.

Still, here too, adultery alone will not influence the court’s decision on asset division. So, if an unfaithful spouse did not spend shared money on their affair, it could leave the asset division outcome unimpacted.

For more information about how different acts could affect your divorce settlement, contact Empire Law.

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