Does Infidelity Affect Spousal Support?

By Michael DiFalco

Infidelity is one of the most commonly cited reasons for divorce. If you are going through a divorce after your spouse engaged in an extramarital affair, it is normal to feel uncertain about your financial future.

For those facing a divorce in New York, you may wonder what the impact of your spouse’s infidelity will be on spousal support. In the state of New York, people have the option to end a marriage because of an affair. 

But the financial outcome of this decision will depend on the specific factors of your situation. Make sure to speak with a seasoned family law attorney if you plan to go through the divorce process following infidelity. You may feel betrayed, so finding an attorney whom you trust to protect your rights is even more important.

Proving Infidelity When Filing for Divorce

When individuals file for divorce, they must cite a specific reason. You can file for reasons involving “fault,” or you can file for a “no-fault” divorce. 

Filing for divorce because of the other party’s adultery places the fault on their shoulders. However, simply saying that your spouse was unfaithful is not enough. 

You would need to provide evidence that an extramarital affair occurred. The evidence provided can be circumstantial, but it must allow the presiding judge to reasonably believe that infidelity took place. 

However, nearly all divorces in New York proceed on a no-fault basis, which does not require any proof of infidelity. In fact, judges dissuade parties from trying to prove fault-based divorces including those based on adultery. 

How can infidelity impact spousal support arrangements?

In the state of New York, spousal maintenance payments are not automatically awarded following a divorce. 

The purpose of spousal support payments is to help the spouse with less earning capacity meet their needs. The judge determines the amount and duration of spousal support payments based on the specific circumstances of the divorce.

Courts in the state of New York rely on a formula to determine standardized maintenance payments. However, family court judges have the discretion to increase or decrease the awarded amount.

According to NY state laws, spousal fault is not one of the reasons that affect the amount of awarded support payments. Some New York judges have considered infidelity in cases involving spousal support, but this is extremely rare.

Typically, marital fault is only considered to be a relevant factor if the at-fault party’s actions were egregious. In other words, the person’s behavior would be shocking or outrageous. 

In the state of New York, infidelity does not usually affect the amount of spousal support that is awarded following a divorce.

However, someone cohabiting or living with their new partner, who might provide financial support as well, may have an impact on the determination of spousal support for practical economic reasons rather than assigning fault. 

Use of Marital Assets During an Affair

While adultery does not usually impact the spousal support arrangement in New York divorces, the surrounding circumstances can have an impact. Suppose the unfaithful spouse used marital funds to pay for hotel rooms to conduct the affair.

In cases like this, the overseeing judge can take the financial impacts of the infidelity into account. Using marital assets to fund an extramarital affair may qualify as a waste or dissipation of marital property or income.

It is vital to consult with a skilled family law attorney if you are going through a divorce after incidents of infidelity. The seasoned legal professionals at Aiello & DiFalco proudly serve clients needing family law services in Garden City, NY. Contact our firm today to schedule a consultation!

About the Author
I am a partner at Aiello & DiFalco LLP, and my priority for my clients is to guide them through an arduous court case to provide them with the opportunity to write the next chapter in their life. I tailor my approach to each client’s priorities and positions, and to the extent that matters can be predicted, I will always provide a realistic perspective of how the law could be applied to the particular facts and circumstances of a case. Since I thrive on helping people and solving problems, I bring an optimistic and positive approach to practicing in a very difficult area of law. With more than a decade of experience handling hundreds of cases, I have the ability to get results on the issues my clients view as priorities. When cases or certain issues cannot be settled, I have a solid record of success at trials, hearings, and on appeals. Feel free to contact me for a free initial consultation, I am always available to help.