Divorce and Extramarital Affair

Author: S. Thomas Lee, Esq.   Last Updated: 11/28/2018

Do extramarital affairs matter in a divorce? For example, can extramarital affairs constitute a reason for divorce? Can it affect property division? Or, can it affect custody arrangement? Let talk about these issues.

Adultery vs No-Fault Divorce

In the past, when it comes to divorce law, New York has been one of the most conservative states.

When New York recognized no-fault divorce in 2010, it was the last state in the union to do so. Before that, in order to obtain a divorce, one spouse must be at-fault (unless there has been a legal separation for one year). The fault could be one spouse abandoning the other spouse, or treating the other spouse in a cruel manner, or committing adultery.

In fact, if we go further back in years, prior to 1966, adultery was the only ground for divorce in New York. New York courts made divorce difficult to obtain because they wanted to protect the sanctity of marriage. Since a divorce was difficult to get, parties had to go to great lengths to get it.

When adultery was the only available ground, some attorneys would arrange for the husband to meet a private investigator at a hotel room. The private investigator would bring with him a female “assistant.” Once everyone was there, the husband and the female assistant would undress. The private investigator would then take photos of them. These photos would then be used in court to prove that an act of adultery was committed, so that a divorce would be granted.

After a while, judges started noticing that in many uncontested divorce cases, the mistress was the same woman as shown in the photos presented to the court. The judges caught on to what was going on and began to impose additional rules to make proving adultery more difficult. In New York, even if the adulterer admits in court to having committed adultery, together with photographs showing him in the act, that is not enough to prove an adultery has taken place. The courts require the sworn testimony of a third party, under the penalty of perjury, who knows about the adultery. This evidentiary requirement remains with us today. And that is why adultery is rarely used as a ground for divorce.

Today, the most often used grounds for divorce is called Irretrievable Breakdown in Relationship for at Least Six Months (Domestic Relations Law Section 170 Subdivision 7). This is a no-fault ground because neither party has to be at-fault. The fact that one party believes that the marriage has broken down for 6 months is sufficient as a ground for divorce.

When irretrievable breakdown was introduced in 2010, some defendants tried to contest the ground and argued that the marriage has not broken down as Plaintiff has alleged. For example, a husband would present evidence that the couples was still happily married a few months ago. The husband would say that he and his wife went out to dinner together, drank and laughed together and had marital sex together just a few months ago. The courts were initially divided as to whether defendants were allowed to challenge a claim of irretrievable breakdown. Some trial courts said defendant could challenge it. Some trial courts said otherwise. In December 2012, a New York appeals court held that there is no right to a trial to challenge a claim of irretrievable breakdown. See Palermo v. Palermo100 AD3d 1453 (4th Dept. 2012). Therefore, irretrievable breakdown is now the most often used ground for divorce.

What effect does an extramarital affair have on property division in a divorce?

Sometimes, a client goes to a divorce lawyer and thinks that his or her cheating spouse should be punished financially in a divorce. But in NYS, divorce is for the most part not about punishing an immoral spouse. In NYS, divorce is mainly about finances, such as division of marital property and spousal support. And if there are children involved, divorce is also about custody, visitation and child support.

Divorce is not about punishing a spouse who has cheated by having affairs. Even in cases where a party has had multiple extramarital affairs, the court would in almost all cases say that it is not interested in the affairs when determining the financial issues of the divorce.

We can say that the court will not give one spouse more in property distribution because he/she suffered emotional harm by reason of the extramarital affair of the other spouse. But if the extramarital affair causes financial harm to the marriage, then the court will take an interest in it.

Generally, we can say that the court is not interested in the physical or emotional aspects of an affair. But a divorce court is interested in the financial aspects of an affair. What this mean is that if a cheating spouse spent a lot of money on his mistresses, buying them expensive items such as jewelry and cars, or paying their rent, then the court may consider these facts as "wasteful disposition of assets." And these will likely have an effect on how marital properties are divided.

One thing to keep in mind here is that what influences the financial expects of the divorce is not the extramarital affairs, but the wasteful disposition of assets. Furthermore, a spouse can engage in wasteful disposition without having an affair. For example, prior to a divorce, a spouse may sell property to a sibling at below market price. A spouse may engage in extravagant spending sprees. A spouse may gamble money away. These can be considered as wasteful disposition, and they can have an impact on how marital properties are divided in a divorce. Therefore, for the most part, divorce in NYS is not about morality. As an example, there has been a case where a wife had her boyfriend lived in the marital home and had a baby with that man. In that case, the judge said the affair had no bearing on marital property distribution.

Does that mean that as far as morally wrongful conducts are concerned, they can have no affects at all on property distribution in a divorce? Well, in the extreme case, they can. There has been a case where a husband tried to murder his wife by hitting her with a bowling ball on the head. In that case, the act of an attempted murder caused him to get less in property distribution than he otherwise would have.

Also, oftentimes a divorce is settled out of court. A cheating spouse may be willing to give the other side more in property settlement because he feels guilty about the affair, or because he wants to avoid embarrassing details about the affair being shown in court.

Can extramarital affairs affect custody arrangement?

In New York, custody determinations are made using the concept of “the best interests of the child.” For the most parts, an affair, in and of itself, will have no affect on custody arrangement. But there are exceptions. Extramarital affairs may affect custody if the spouse in question engages in frequent and multiple affairs with different people. The court may say that such actions constitute an unstable life-style that can negatively impact the well-being of the child.

Furthermore, if the paramour is violent or abusive, this can have a negative affect on the chances of the cheating spouse getting custody. Although it is possible for the court to order the paramour to stay away from the child in question.

Disclaimer: this article should not be construed as legal advice. Each legal case should be analyzed based on its own facts and circumstances.

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