In 2010, New York became the last state in the country to include irretrievable breakdown of the marriage relationship as a reason for divorce. This no-fault clause allows one member of the couple to swear to the breakdown of the relationship for a period of at least six months to initiate the divorce process.
Prior to adoption of no-fault divorce in New York, one party was required to sue the other to obtain a divorce under a ground that involved fault. Among others, reasons for divorce then and now include grounds like cruel and inhuman treatment, abandonment and adultery.
With the advent of no-fault divorce, does adultery matter anymore? As a means to finding a legitimate reason to end a marriage, proving your partner had an affair is no longer necessary. Because adultery must be proven, not just claimed, the no-fault ground removes the acrimony and bitterness formerly required to end a marriage.
But what if your spouse had an affair and it ended your marriage?
Under New York law, the court is empowered to consider any other factor which the court shall expressly find to be just and proper. Given this factor, matters of adultery and other egregious marital misconduct and marital waste — money spent on affairs — can be considered by the court when ruling on the matters involving your case.
Adultery must still be proven if claimed as a ground for divorce. Even if proven, the pain and betrayal of an affair without further serious financial or physical consequence may not rise to the level of marital misconduct recognized by the court to substantially affect your property distribution.
If you recently discovered or engaged in an affair that ended your marriage, it is essential you seek experienced advice from a New York divorce lawyer.
Jacqueline Newman joined Berkman Bottger Newman & Schein LLP in 1998 and is now the managing partner of the firm. Ms. Newman’s practice consists of litigation, collaborative law and mediation. She specializes in complex high net worth matrimonial cases and also in negotiating prenuptial agreements. Read more about Jacqueline Newman.