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Home | Divorce Laws | Is Adultery/Cheating a Ground for Divorce in NY?

Queens Attorneys Explain Adultery or Cheating as a Ground for Divorce

Offering guidance about fault-based and no-fault divorce

New York became a no-fault divorce state in 2010. That means you are no longer required to allege that your spouse is blameworthy when you file a divorce action. However, the fault-based route is still an option, and adultery is among the fault-based grounds for divorce in New York. In fact, before 1967, adultery was the only ground for divorce in New York. The experienced attorneys at Sager Gellerman Eisner Attorneys at Law help you decide on the best strategy for pursuing your divorce.

Proving adultery as a ground for divorce

To prove adultery as a ground for divorce, you don’t have to present direct evidence of cheating, but you do have to establish all of the following:

  • Opportunity — The defendant spouse was alone with his or her paramour for an extended time.
  • Inclination — The defendant showed a romantic interest in his or her paramour, either in public or through phone calls, emails or text messages.
  • Intent — The defendant took deliberate steps to meet with his or her paramour in private.

The evidence must be sufficient to allow a reasonable person to conclude that an act of adultery was committed. Plaintiff spouses often hire private detectives to gather evidence of the defendant spouse’s misconduct.

Proving adultery is complicated by the fact that a New York statute prohibits you from testifying against your spouse in a divorce that is grounded on an allegation of adultery. Proving adultery is further complicated by the fact that judges don’t give much weight to the testimony of friends or relatives of the plaintiff spouse.

Defenses to an allegation of adultery

You cannot plead adultery in a divorce complaint if the alleged act of adultery occurred five or more years earlier. Another defense is that the plaintiff spouse condoned the adultery at the time of the affair. The defendant spouse also can claim that he or she committed adultery as a payback for an earlier infidelity by the plaintiff spouse.

Even if you prove adultery, it will not have an effect on the court’s decisions about property division or alimony — unless you prove that the unfaithful spouse squandered marital assets on his or her paramour.

Contact our New York State divorce attorneys today

Our lawyers help you navigate the technical aspects of filing for divorce. We are particularly sensitive to the issues surrounding divorces involving professionals and high-net-worth individuals. You can reach us through our online contact form or call us at 347.625.1038 for a consultation. From our offices in Queens and Forest Hills, we serve clients in Nassau and Queens Counties and the New York City boroughs of Manhattan, Queens and Brooklyn.