Adultery, Alimony and the Division of Property:
Are These Issues Related

By Staff Writer

If your spouse is committing adultery, what effect will that have on the division of your property and the payment of alimony (spousal support)? Many people assume that if they have been "wronged" by an unfaithful spouse, the unfaithful person will be punished by the Court system. While this belief is based in a sense of fairness and justice, it does not accurately portray the results that can be obtained in the Court system.

In New York, the issue of marital fault and the issue of finances are supposed to be decided separately. It is only in cases of overwhelming or "egregious fault", such as murder, that the guilty spouse is supposed to receive less in property or support. Adultery is not considered egregious fault and the commission of adultery is not supposed to result in a penalty in the division of your property or the payment of alimony or spousal support.

Marriage is considered an economic partnership in New York law. During a Divorce, the property acquired during the marriage must be "equitably" or fairly divided. In most marriages, both parties contribute to the accumulation of property and wealth. The efforts that are considered as contributing to that wealth include work in and outside of the house, child rearing duties, management of family matters, and emotional support. During Divorce, the wealth is equitably divided and a less financially secure spouse may be entitled to alimony or spousal support. Spousal support is based upon a number of factors, including the marital standard of living. That the financially insecure spouse had an affair is not a factor that the Court can consider in determining that person’s need for support. Simply put, if a spouse betrays their marriage vows, their years of contributions to the marriage are not erased. Because marriage is an economic partnership, that spouse will be entitled to share in the property that was accumulated. They will also receive support if the facts of the case show that they are in need of support.

Having set out the legal standard, we can tell you that Judges are human. Under certain circumstances, marital fault may subconsciously play a role in swaying the Judge’s opinion and affecting the Judge’s decision. For example, take the case of Jane and John Doe. Assume they have been married for eight years and have three children, ages 3,5, and 7. John has a good job and earns in excess of $70,000 per year. Jane is not currently employed outside of the house and she cares for the children and manages the household. If John has an affair and leaves his wife and children, will that affect the Court’s decision regarding property or support? The answer is that it might. The Court will be very concerned for Jane and the children’s well being and will attempt to protect them. The Court will not be very concerned with protecting John if he had an affair and left the household.

There is no statute or case in New York State that allows a Judge to award more property or support to Jane under the above circumstances. Jane’s attorney, if she has a good one, will concentrate on portraying John as a miscreant who abandoned his family. John’s attorney may try to show that Jane’s rotten behavior towards him drove him to another woman. However, under these circumstances, Jane will be the sympathetic spouse and, if her attorney plays on that, she may receive a better award.

If you believe that fault issues will dictate your financial settlement, speak to your attorney and obtain a clear understanding of your own circumstances - including an understanding of the prior decisions of the Judge assigned to your case.  Often, the mistaken belief that "the other party should pay" fuels additional litigation and results in tremendous legal bills, without any clear cut right or probability of success.  Make sure you understand the dynamics of your situation and just how far you can go in seeking compensation for your spouse's "alleged" wrongs.  Proceeding with a case fueled by the emotion of righting a wrong does not guarantee that you will be any better off at the end of your journey through the Court system.  If you live outside of New York State and need information on this issue, contact one of the attorneys listed in our National Database or contact Nationwide Legal Services (Advertisement below) to obtain information at no cost.