Adultery is a common cause for spouses to separate and divorce. In many states, including New York, adultery by a spouse may be considered by the court in different aspects of the divorce proceedings. Here’s our guide to spousal support after an affair.
Legal Grounds For A Divorce
In New York, divorcing spouses may seek a “no-fault” divorce or a “fault” divorce. In a “no-fault” divorce, the filing spouse only needs to show that the marriage has been “irretrievably broken” for at least six months. This basically means that the couple can’t get along anymore and are unable to remain married because of their differences.
For a “fault divorce,” the filing spouse must show one of the following:
- Cruel and inhuman treatment (such as physical or mental abuse)
- Abandonment for at least one year
- Incarceration for at least three consecutive years, or
- Adultery.
Regarding the ground of adultery, New York law defines adultery as a married person having sexual intercourse with a person who is not his or her spouse. If you’re seeking a divorce based on adultery, you must be prepared for a higher-conflict divorce case. The law requires that you provide evidence of the adultery from a third-party, such as a private investigator. Higher conflict divorce cases often cause more emotional harm to the parties, especially when children are involved. As a result, a no-fault divorce can sometimes be a good alternative, even when there has been adultery.
Alimony In New York
During the divorce process, one spouse may ask the judge to award financial payments to help support that spouse during and/or after the divorce. The parties may agree on the amount to be paid, or the couple may have a prenuptial or postnuptial agreement that sets out alimony payments. If there is no agreement between the parties, the judge will look at many different factors and decide if there should be an award and the amount of the payment. In New York, these payments may be called “alimony,” “maintenance,” or “spousal support.”
In making a decision about alimony, the court will look at the following factors:
- income and property of both spouses
- length of the marriage, including any time the couple lived together before and after the marriage
- age and health of both spouses
- The present and future earning ability of each spouse, including the reduced ability of one spouse due to the delaying of education or career opportunities, and the inability to earn due to age or absence from the workforce
- need for one spouse to gain education or training, and how long this might take
- acts that prevent a spouse’s ability to gain employment or increase earning ability (for example, mental or physical abuse)
- where children from the marriage live
- any need to care for family members other than children
- any need to pay for exceptional expenses, such as schooling and medical care for children
- tax consequences to each spouse resulting from paying or receiving alimony
- what property was awarded during equitable distribution
- loss of health insurance due to the divorce
- contributions and services by the spouse seeking alimony, such as homemaker contributions, and
- any wasteful dissipation (use) of marital property by either spouse or unfair transfer or hiding of assets.
When the judge looks at these factors, there is no fixed formula used to make the decision. Both parties will present evidence to the judge in support of their case, and the judge will make the decision based on an assessment of the entire set of circumstances.
Does Having An Affair Impact Spousal Support?
Marital fault, which includes adultery, is not commonly considered by the court when awarding alimony and in dividing marital property. In particular, adultery will not automatically result in an award of alimony. Courts in New York will look for “egregious” behavior or acts by a spouse in considering an award, and courts have found that adultery by itself is not “egregious” enough.
However, when one spouse commits adultery and uses a large chunk of marital assets on a lover (for example, on gifts, vacations, or hotel rooms), the judge may find this to be a “wasteful dissipation” of the marital assets. The adulterous activity would then become one factor the judge considers in making the alimony award.
If you are considering filing for divorce in New York call the attornies at Brian D. Perskin And Associates at 718-875-7584 today!