There are some states that do not consider any extraneous factors when deciding to grant a divorce. However, New York is not one of those states. Under state law, a spouse that has committed adultery can have their infidelity used against them in their divorce case.
When a married person engages in sexual intercourse with someone that is not their legal spouse, it is considered adultery. In order to prove adultery, a third-party investigator may have to be used to provide evidence that the accused spouse acted outside their marital responsibilities. If it can be shown that adultery has occurred, the spouse can proceed with the filing a fault—based divorce.
What difference does filing for a fault divorce make?
New York asks that a divorce filing include whether it is a fault or a no-fault divorce. No-fault divorce means that irreconcilable differences have kept a couple from acting in their capacity as a married couple for at least six months. In a fault divorce, evidence must be used to prove that the actions of one spouse has created the need for the divorce and the divorce would not have occurred otherwise.
Some examples of what can be considered a fault for divorce:
- Adultery
- Three or more years of incarceration
- Cruel or inhumane treatment
- One year or more abandonment
- Domestic violence or abuse
One reason why a spouse may want to prove adultery in a divorce case is that it can affect how alimony is determined. While spousal support is generally meant to cover the basic needs of a former spouse as they rebuild their life and gradually gain earning potential, there can be some instances where infidelity during the marriage impacts payments. Furthermore, if significant marital assets were spent maintaining this affair, the judge may consider this a waste of assets and award the other spouse a larger settlement.
However, when children are involved, it may be better to consider a no-fault divorce. No-fault divorce generally results in a smoother, less litigious divorce, which is better for the children. Since it is not guaranteed that the affair will result in more spousal support, a fault divorce may be more trouble than it's worth.