Adultery during Divorce Proceedings : Your Legal Rights

Establishing adultery requires specific evidence that demonstrates your spouse's infidelity. Direct evidence, such as photographs or testimony from witnesses who observed the act, is strongest, but circumstantial evidence may also support your claim. Courts may consider hotel receipts, text messages, email communications, and testimony from private investigators or other witnesses who can attest to your spouse's whereabouts and conduct. The evidence must clearly show that adultery occurred during the marriage and before the divorce was finalized.

Adultery must have occurred before the divorce action was commenced to serve as a valid ground for divorce. Additionally, if you condoned the adultery by continuing to live with your spouse with knowledge of the infidelity, you may lose the right to use adultery as grounds for divorce. New York courts require that you act promptly upon discovering adultery and file your divorce action without unreasonable delay. Consulting with a family law attorney can help ensure you meet all procedural requirements and preserve your right to assert adultery as grounds.

New York follows the principle of equitable distribution, meaning marital property is divided fairly but not necessarily equally. Adultery may be considered as one factor among many when the court determines what constitutes a fair distribution. Courts may award a larger share of marital property to the non-adulterous spouse if the adultery caused financial harm to the marriage or contributed to the breakdown of the relationship. Documentation of any financial consequences resulting from adultery, such as money spent on an extramarital relationship, may influence the court's decision regarding property division.

Adultery can affect the amount and duration of spousal support (maintenance) awards. If the adulterous spouse is the higher earner, the court may award more generous maintenance to the non-adulterous spouse. Conversely, if the non-adulterous spouse is the higher earner, adultery may reduce or eliminate their maintenance obligation. New York courts consider adultery as a relevant factor in calculating maintenance under the statutory guidelines, though it is not the sole determinant. The court will examine income levels, age, health, and other statutory factors while weighing the impact of adultery on the marital relationship.

New York courts apply the best interests of the child standard when making custody decisions. Factors include the quality of each parent's relationship with the child, the child's adjustment to home and school, the mental and physical health of all parties, and the ability of each parent to provide for the child's needs. Adultery is considered only if it substantially affects these factors. If a parent's extramarital relationship demonstrates instability, exposes the child to inappropriate situations, or diverts parental attention and resources away from the child's care, the court may factor this into its custody determination. However, adultery alone does not automatically result in loss of custody.

If adultery has negatively affected your child, gather evidence demonstrating this connection. This may include testimony from school counselors, therapists, or other professionals who can attest to the child's emotional distress resulting from a parent's infidelity. Records showing that the adulterous parent neglected the child's needs or failed to maintain appropriate boundaries during the affair may strengthen your position. Courts are more likely to consider adultery relevant when it directly harmed the child's welfare or compromised a parent's ability to provide stable, attentive care.

Several affirmative defenses may apply if your spouse alleges that you committed adultery during the marriage. Condonation occurs when you continue to live with your spouse after they discover your infidelity, effectively forgiving the conduct. Connivance applies when you consent to or encourage your spouse's adultery. Recrimination may be raised if both spouses committed adultery, though this defense is less commonly used in modern New York family law. Collusion, where both parties fabricate or exaggerate adultery claims to obtain a divorce, is prohibited and may result in dismissal of the case. Your attorney can determine which defenses apply to your situation and present them effectively in court.

Presenting evidence of adultery requires careful planning and strategic presentation. Witness testimony from individuals with direct knowledge of your spouse's infidelity carries significant weight. Private investigator reports, photographs, and digital communications must be obtained legally to be admissible in court. Illegally obtained evidence, such as recordings made without consent in violation of wiretapping laws, will be excluded from trial. Your attorney will ensure all evidence is properly authenticated and presented in compliance with New York rules of evidence. Expert testimony may be necessary to establish the authenticity of digital communications or to explain technical evidence.

Navigating adultery during divorce proceedings requires experienced legal counsel familiar with New York family law. The consequences of adultery extend beyond the grounds for divorce to encompass property division, spousal support, and custody arrangements. An attorney can help you gather evidence, present your case persuasively, and protect your rights throughout the litigation process. Contact a qualified family law attorney to discuss how adultery during divorce proceedings may affect your specific situation and to develop a comprehensive legal strategy tailored to your needs.