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Effects of Infidelity on Divorce in New York

It is not uncommon for couples to seek a divorce based on infidelity by a spouse. Unfortunately, these cases are becoming more and more common, especially in unhappy marriages. With time, adultery becomes the final nail in the coffin of an already despondent relationship.

Adultery is defined by the state of New York as a married person having consensual sexual relations with someone who is not their spouse. Such cases are often described as higher-conflict cases, which means that solid evidence of infidelity is necessary. Further, this means that people will have to hire a private investigator to produce the proof, or will have to show the audio-visual proof of the act. However, these cases often tend to cause a lot of emotional harm to the spurned spouse.

  1. Courts do not take the testimony of family and friends during these cases, as they may try to show the accused off as innocent, or may spread false information so that the injured spouse gets even more compensation.
  2. Proving adultery means showing that the spouse had all the intent, inclination, and opportunity to stray. This is proven by showing that the spouse spent multiple nights with their lover, spent large amounts of money on them, neglected their spouse and children for the attention of the lover, and became physically and emotionally abusive.

"Fault" And "No-Fault" Divorce

In the state of New York, partners going through a divorce can either apply for a "fault" or "no-fault" divorce. The latter merely states that the couple has been unhappy together for at least the last six months. Essentially, there is no future for the couple, as they cannot be married to each other anymore. "No-fault" divorces are usually mutual and are granted a quick conclusion by the courts.

In the case of a "Fault" Divorce, one spouse is usually held liable for the annulment of the marriage. To prove "fault" divorce, the other spouse will have to provide physical evidence of any of the following:

  • Physical, mental, and emotional abuse.
  • Abandonment and neglectful behavior towards the spouse.
  • Being incarcerated for at least three years.
  • Adultery
  • Infidelity and Divorce


The act of adultery in itself does not affect alimony in any way. Alimony is usually based on other factors, such as which spouse has a higher income and who has primary custody of the children, if any. However, courts do look out for conspicuous signs of adultery, for example spending marital property or wealth in order to spend it on one's lover. If the marital property has been used in the course of the affair, then any amount equating to the value of the property is deducted from the share of the cheating spouse.


The state of New York allows the cheating spouse to defend their actions during a divorce proceeding. The spouse is given a fair chance of justifying their behavior and are allowed to ascertain certain facts to justify their stance.

The spouse knew about the affair and was condoning it.

  • The spouse consented to the affair when it occurred, and have changed their original stand due to the divorce.
  • After learning about their partner's infidelity, the spurned spouse too had an affair with another person or had consensual sexual relations with multiple partners.

According to the state of New York, this stand against the partner is termed as "recrimination." If this stance is successfully proven, then courts do not grant a divorce on the basis of adultery, since both partners are found liable in one way or another. Rather, divorce is granted based on mutual consent. However, exceptions exist in cases where the spouse forgave the affair, yet they cheated on their partner a second time.

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