Cheating Doesn't Matter: Why Adultery Isn't the Best Grounds for Filing a Divorce in New York

Often, the cause of a divorce can be tied to the most straightforward breaking of marriage vows: cheating. However, as much pain and anger an extramarital affair can cause, and as understandable as it is to want to file for divorce as a result, claiming cheating as the reason is not the best way to get out.

Many New Yorkers are often surprised to learn that, although for a long time adultery was the only grounds for the granting of a divorce in New York, today it is one of the least effective ways to try and get out of a marriage, even if your spouse is cheating right in front of you or in public.

This is because adultery, under New York law, is a ground that must be proven in order to get the divorce on that basis. While you would think that, in the age of social media, proving an affair is a relatively easy matter (text messages, Facebook posts, Instagram photos), the reality is that New York courts have a set of requirements that are difficult to fulfill.


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Proving Adultery for a Divorce Case

Under New York law, "adultery" is defined as an act of sexual or deviate sexual intercourse, voluntarily performed by the Defendant spouse with a person other than his or her spouse during the course of their marriage. However, the spouse who was cheated or is being cheated on cannot testify against the Defendant spouse themselves. Instead, they need to produce a witness who is willing to and can convincingly testify to the court that the Defendant spouse did in fact engage in sexual relations with a person other than their husband or wife. Typically, this would include circumstantial evidence such as the social media information mentioned above, or video taken by a private investigator.

In addition to having to prove the other person cheated, even if that can be established, there are four defenses to adultery that the Defendant spouse can use to prevent a divorce on those grounds. These four defenses are:

  1. Connivance or Procurement: The Plaintiff spouse either actively encouraged their husband or wife to have the affair/commit adultery or plotted circumstances whereupon it would occur (for example, hiring a prostitute to get their spouse to cheat and then filing for divorce);
  2. Collusion or Consent: The Plaintiff spouse agreed to the cheating (for example, consenting to an open marriage where both spouses could have sexual relations with other people);

  3. Condonation: Also known as “forgiveness,” this means that the Plaintiff spouse knew of the extramarital sexual activity and either forgave it by word (stating their forgiveness) or by deed. Actions condoning adultery include going to counseling with the cheating spouse, not moving out/insisting the cheating party move out of the marital home, and not filing for divorce until sometime after learning about the affair; and

  4. Recrimination: The Plaintiff spouse also cheated. Here, even if the Plaintiff’s extramarital affair was a “revenge” affair to get back at their spouse, or was years ago, it will allow the Defendant spouse to claim this cheating as a basis for them to avoid divorce under adultery in New York.

Additionally, a common misconception regarding New York law that leads many people to want to file for divorce under adultery grounds is that if proven, it can affect custody and financial determinations. This is not necessarily the case, however.

For a New York court to make a custody or property determination based on one spouse cheating, the non-cheating party will have to prove how the adultery directly or will directly have an impact on those areas. For example, your wife having an affair isn’t enough for her to not have custody of the kids, but your wife having her new boyfriend sleep over all the time (or your wife bringing the kids with her to stay over her new boyfriend’s all the time) could have an impact. Similarly, your husband having an affair doesn’t mean you get more maintenance in a divorce, but if he emptied out a marital bank account to buy his girlfriend jewelry he may have to compensate you accordingly by receiving less of the marital estate. However, these issues can be brought up far more easily after filing under a different ground for divorce, as explained below.

Therefore, if you are a New Yorker whose spouse cheated, and you want to get out of your marriage without having to prove all the details of what they did, what is the best way to file?

The Best Grounds for Filing Divorce in New York

"No fault" divorce, also known as "irretrievable breakdown," is the best solution and ground to file under. Under New York law, all you would have to is state in your divorce filing that your marriage with your spouse has irretrievably broken down for a period of at least six months. There is no proof required in order to get a judgment of divorce from a New York court on no fault or irretrievable breakdown grounds.

The great benefit of this is not only not having to prove everything, but not having to air your dirty laundry for the judge, the court reporter, and anyone else in the courtroom to hear. While you may want to punish your spouse, discussing an affair that went on behind your back can be painful to make public, and filing under no-fault will allow you to maintain some privacy during a difficult time. Therefore, a good New York divorce lawyer or attorney will almost always tell you, it doesn’t matter if they cheated—if you want out, go for the route that will get you there faster.

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