As crushing as it may be to discover your spouse has cheated on you with someone else, the impact of infidelity on your divorce in New York is minimal. Regardless, adultery remains the number one reason for ending a marriage.

A study done by the Austin Institute surveying divorcing parties offered participants a choice of 17 distinct reasons commonly cited for pursuing their divorce. According to the results, 66 percent selected more than one of the 17 reasons, and one in four chose five or more reasons they ended their marriage.

In descending order, the most cited reasons for divorcing a partner were:

  1. Infidelity by either party: 37 percent
  2. My spouse is unresponsive to my needs: 32 percent
  3. I got tired of working on what was a poor match anyway: 30 percent
  4. My spouse is too immature for marriage: 30 percent
  5. My spouse was emotionally or physically abusive: 29 percent
  6. We had different financial priorities or spending patterns: 24 percent
  7. My spouse and issues with drug and/or alcohol abuse: 23 percent

In nearly every other study, infidelity – having an extramarital relationship outside the marriage – ranked as the number one reason to divorce or enter counseling. In addition to the aforementioned, many couples also said the impetus to divorce included:

  1. Issues raising children
  2. Different expectations – not just financially
  3. Irreconcilable religious and cultural differences
  4. Boredom, or growing apart
  5. Sexual problems
  6. Physical or emotional abuse
  7. Lack of communication

So, if infidelity is the number one cause of divorce, does the cheating spouse still have to worry about whether that affair will cost them when they split? Not really. In divorce court, infidelity doesn't really matter.

Today, family law judges are more interested in addressing the financial inequities between the spouses and the best interests of any children. Or, when there are no children, in leveling the playing field for the less-monied spouse.

If I catch my spouse cheating, will that help my settlement?

Again, not necessarily. It used to and still does in the movies. In New York State, however, adultery does not affect a divorcing couple's division of assets.

The court does not care that you are cheating. Nonetheless, if there are children and custody issues to resolve, who you "fool around" with could impact potential custody negotiations.

If the court doesn't care that I cheated, why does it care who I cheat with?

The court cares if you are involved with a third person who engages in behaviors it views as harmful to your children's well-being.

What does that mean? It means that if, for example, you (or your spouse's) new love has "issues" that could impact your children, you could be jeopardizing your custody opportunities.

What kind of issues? Anything that might cause the court to consider it inadvisable to permit this person to be around your children. This can include psychological issues; drug, alcohol, other substance abuse, a gambling addiction, present or past behavior, and other factors.

If the court finds that your new companion should not be around your children, you may be penalized, and court orders may be issued that prevent your paramour from having any contact with your children.

Can cheating affect my ability to collect spousal maintenance (alimony)?

Extramarital affairs, per se, will not jeopardize a claim for maintenance (alimony). However, under New York’s maintenance statute, a court may consider the ancillary financial resources of a party suing for maintenance. What that means is that if the boyfriend or girlfriend of the person suing for maintenance is wealthy, the court may consider that and adjust the amount of maintenance awarded accordingly.

Will adultery impact property division in my divorce?

Adultery per se will not affect the division of assets in a divorce in those states, such as New York, that follow the equitable distribution doctrine in dividing marital assets. However, very often spouses who have extramarital affairs (often, but not always, the husband) spend marital funds on the object of their affection. Courts can take such behavior into account under the doctrine of “marital waste” and adjust the division of assets in a divorce accordingly.

While the court doesn't care which one of you cheated, adultery can add an extra layer of complexity to the divorce process. If you have questions about how best to navigate your options, let's talk. I'm Dan Stock, and you can call me at 475-232-4105 or email me at to schedule a consultation.

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