When a divorce involves infidelity, it is not unusual for a spouse to feel that a judge should take that fact into account in determining how much the spouse is entitled to get in the divorce. Many people believe they should get more money in the divorce because the other spouse cheated. However, divorce laws do not work that way. They focus on economic fairness not punishing people for bad behavior.
In New York, adultery is one of seven grounds for obtaining a divorce. However, most divorces are based on the grounds of an “irretrievable breakdown of the marriage for at least six months,” which is New York’s version of “no fault” divorce. This ground is a much easier and faster way to divorce as the parties do not have to prove anything as one spouse need only swear that the marriage is irretrievably broken. Nonetheless, even if one party sues for divorce based on adultery, that does not impact spousal support or division of the marital assets. There are separate rules which govern those financial issues, and they apply regardless of the reason for the divorce.
Spousal support, also known as alimony, is determined by a legal formula in New York. The formula varies depending on whether the recipient is also getting child support and whether the payor’s income exceeds an income cap. This cap is updated every two years. Divorcing couples may also negotiate support amongst themselves.
Marital assets are subject to equitable distribution in New York, meaning they are divided equitably, not necessarily equally. By statute, there are 14 factors to be considered in equitable distribution. Adultery is not one of the express factors. However, the court may take into account “any other factor which the court shall expressly find to be just and proper.” New York courts do not consider adultery by itself to be a factor in equitable distribution. It is possible for adultery to be an indirect factor if it resulted in wasteful dissipation of assets by the cheating spouse. In other words, the court would consider it relevant if the adulterous spouse took marital assets and used it to buy things for a boyfriend/girlfriend, but the focus would be on the dissipation of assets not the reason for it. In addition, the dissipation needs to be substantial, meaning at least $50,000.00 to $100,000.00.
Whether it is fair or not, New York divorce law does not punish spouses for their adulterous behavior. Consequently, you cannot get more money from your divorce if your spouse cheated.
If you are considering divorce, the best thing you can do is to speak with an experienced attorney. Contact us to discuss how we can help protect your interests.