Divorce is undoubtedly one of life's most challenging experiences. It's even more painful when adultery is a contributing factor. If you're navigating this tumultuous journey, our hearts go out to you.
While adultery can be a devastating factor in the emotional fallout of divorce, it can also potentially have a legal impact. While New York offers no fault divorce as an option, choosing to divorce on the grounds of adultery is also an option.
Understanding No Fault vs. Grounds for Divorce
In a no-fault divorce, the filing spouse doesn't need to prove that the other spouse did something wrong. This is often the more straightforward option, as it requires no evidence and is less likely to create a contentious environment. The only requirement is to demonstrate that the relationship is irretrievably broken for a period of six months.
On the other hand, choosing to divorce on the grounds of adultery is a more complex situation. To successfully divorce on these grounds, the filing spouse must provide clear and convincing evidence of the affair. This can include eyewitness accounts, photos, phone records, or other substantial evidence.
Regardless of whether you proceed with no fault or grounds, this choice will not affect you ability to have adultery considered in the other legal issues in your divorce case.
The choice between no fault and grounds for divorce is an easy one, as no fault requires a simple sworn statement, not proof, and no additional cost to the client for securing proof and testifying at trial. Ultimately, it's crucial to seek legal counsel before deciding to pursue an adultery-based divorce. An experienced divorce attorney can guide you through the legal intricacies and offer you tailored advice based on the specific circumstances of your case.
How Adultery Can Impact Property Division
In New York, property division during a divorce is determined based on the concept of "equitable distribution." This does not necessarily mean an equal 50/50 split, but rather a division that the court deems fair and just. Generally, marital property—property acquired during the marriage—will be subject to distribution, while separate property—property owned by one spouse before the marriage or acquired by them individually through inheritance or gift during the marriage—remains with the original owner.
While adultery might not directly influence property division, it could have an indirect effect in some cases. The court might consider a spouse's wasteful dissipation of assets in relation to the affair. If a spouse has spent a significant amount of marital assets on their extramarital relationship—for instance, on gifts, vacations, or housing for their paramour—the court may consider this when dividing the marital property. This would generally result in the innocent spouse receiving a larger share of the property to compensate for the loss, including a payment to the innocent spouse of half of the funds wastefully dissipated.
However, it's important to note that proving the dissipation of assets can be as challenging as proving the adultery itself. This could involve demonstrating that the spouse had an affair and that they spent marital assets on the affair to the detriment of the marital estate. If the cheating spouse used a credit card for expenses for the paramour, you may be able to prove the wasteful dissipation. However, if cash was used, this mayl be nearly impossible to prove. Legal counsel is vital in such situations to determine the best course of action.
Can Adultery Impact Child Custody?
Adultery itself does not directly affect child custody decisions. The court may consider adultery as a factor if there is evidence that the adulterous behavior exposed the child to inappropriate situations or individuals, resulted in neglect of the child, or otherwise had a detrimental impact on the child's well-being.
Any negative impact on the child must be demonstrable and significant. Custody decisions are highly fact-specific and depend on the circumstances of each individual case. Therefore, if you believe that your spouse's adultery should influence the custody arrangement, it's crucial to discuss this with your attorney to understand your legal options and potential outcomes.
Trust Samuelson Hause PLLC to Advocate for You
At Samuelson Hause PLLC, we are acutely aware of the emotional turmoil that accompanies divorce, and we strive to alleviate the burden on you and your family by providing comprehensive, compassionate legal support.
Our firm is dedicated to helping you find the best possible outcome for your divorce case. We help interpret and apply the law to your advantage, especially when adultery is a factor. If your case involves the suspected dissipation of assets due to an affair, we are equipped to help uncover and adequately document this for consideration during property division.
At Samuelson Hause PLLC, we also prioritize the welfare of children involved in divorce cases. We understand that the process can be disruptive and upsetting for them, so we take all necessary steps to handle matters related to child custody delicately and with their best interest in mind.
If you are considering filing for a divorce, we can help. Contact us online or call us at (516) 584-4685 for a personalized consultation and allow us to assist you in navigating this difficult journey.
