Filing For Divorce: On The Grounds of Adultery


With the passage of “no fault divorce”, New Yorkers rarely need to rely on other grounds for divorce. Invariably, I have clients who want to file for divorce based on adultery. Adultery is defined as the voluntary commission of an act of sexual intercourse or oral sexual conduct with someone other than your spouse. Thus an act of sex with someone other than your spouse qualifies as grounds for divorce. Technically, Adultery is a crime. See Penal Law §255.7 where in a person is guilty of adultery if he/she engages in sexual intercourse with another person while married. Adultery is a Class B misdemeanor. This crime is rarely, if every prosecuted.

If you want to file for divorce using adultery as the basis, consider how you intend on proving your case. As most affairs are usually conducted in secret, your case may need to be made on circumstantial evidence, i.e. proof of opportunity, inclination and intent. Not an easy road to travel. What constitutes good proof? Eye witness testimony from a private investigator or another person who can be a witness to the sexual conduct between the cheating spouse. A spouse’s confession can also be used as evidence however there are some caveats to this. First, this confession must be corroborated. If the confession was made to you, that may not be enough. Your credibility will be tested during cross examination. Thus, I advise that you obtain other forms of evidence along with your spouse’s statements. In addition, you cannot force a spouse to testify. Remember, the burden to prove adultery is on the moving party. You will need to prove your case with clear and convincing evidence.

There are defenses to adultery that you should be aware. They are: (1) the offense was committed by the procurement or connivance of the other spouse; (2) You forgave the cheating spouse, which can be established by the voluntary cohabitation of the parties with the knowledge of the fact (though in today’s economic times, an argument can be made that despite knowing about the adultery, the economics would not allow one party to move out of the marital estate. I have a few clients who remain living together pending the outcome of the divorce as they simply cannot afford to move out of the house. A word of caution, if you engage in sexual intercourse while living together after the discovery of adultery, then the court might take that as proof that you have forgiven your spouse); (3) the offense happened more than five years ago, in other words, you have five years from the discovery of the adultery to bring an action and (4) where the cheating party is entitled to a divorce as a result of your adultery. In other words, you cheated on your spouse and had they filed for divorce upon discovery they would have been entitled to divorce on the grounds of adultery, then neither of you might be entitled to a divorce based on adultery.

Finally, adultery, generally, has no bearing in equitable distribution of the marriage. It is also not a factor in the determination of maintenance. Thus, I end where I began, there really isn’t an advantage in filing for divorce based on the grounds of adultery. You derive no strategic advantage in your case plus, proving adultery may be more difficult than you may have originally thought.

LEARNING POINT: If you insist on filing for divorce based on adultery, be sure you have the proper evidence lined up. Consult us immediately to begin preparing your case. Keep in mind, even if we are able to prove the adultery, it will have little to no bearing on equitable distribution and/or a maintenance award.

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