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September 1, 2021
Adultery in New York divorces: Does Cheating Affect Alimony?

💔Cheating.

Hot topic 🔥because I often get clients coming to me for a consultation, crying and asking if the evidence of their cheating spouse is worth collecting. Should you be spending thousands on that private detective to ensure they get nothing in the divorce? Does adultery affect alimony/ Will cheating affect a divorce settlement and parental rights?

📲Today’s technology enables people to cheat via all kinds of messengers, emails, apps, sexting and even having a second phone dedicated to extramarital “fun.” Because of these methods, there is plenty of written and photo proofs of the cheating out there. Even without spy cameras or spy software, the evidence is not so hard to collect. But is it worth it? What kind of evidence do you need to prove adultery? Can text messages prove adultery? Does evidence of your spouse cheating and doing you wrong help in your divorce to make them look bad in front of a judge and make them lose their rights to marital property and kids?

⛔The short answer is NO! Sadly, the courts do not care who cheated and did what with whom. There are very few exceptions, such as if the cheating and porn was happening in front of the minor kids of the marriage. 

Cheating does not generally affect dividing of the assets. The cheating spouse does not automatically lose rights to their half of everything gained during the marriage nor to visiting or custody of the children.

What about Alimony (Spousal Support)? 

💔Marital fault, which includes cheating, is not commonly something a judge considers when awarding alimony. In particular, infidelity will not automatically result in an award of alimony. In New York, courts will look for “egregious” behavior or acts by a spouse when considering alimony awards, and courts have found that adultery by itself is not “egregious” enough.

💰There is an exception for property division in cheating situations. The exception happens if one spouse commits adultery and uses a large chunk of marital assets on a lover (for example, on gifts, vacations, or hotel rooms). It has to be substantial, though. In that case, the judge may find the spouse’s spending to be a “wasteful dissipation” of the marital assets. The cheating activity would then become one factor the judge considers in making the alimony award and possibly ordering that the cheating spouse reimburse the other. But remember, there are many factors the judges look at to decide splitting of property in divorces.

So what to do with the information that your spouse is cheating?

ACCEPT IT AND COPE! It’s ok to feel pain, disappointment, to ask why, to ask why me, to be super upset and get really angry. It’s not ok to beat them or to stop them from seeing the kids, though.  Proof of infidelity will not help your divorce, but you must remember: there is NOTHING wrong with YOU. 

Why do people cheat on people they love? Everyone cheats for their own personal reasons and not because of anything YOU said or did. You didn’t cause them to cheat. 

👨‍⚖️What to do first and foremost? Lawyer up, assess your finances – what do you have (assets, income), what do you owe (debts, loans), and what can you expect in the divorce. Cheating is not grounds for divorce, so give us a call and we can help you in any tough marital situation as you handle your divorce proceedings.

Shepelsky Law Group Divorce Attorneys

Tel: (718) 769-6352


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