What Role Does Cheating Play in a New York Divorce Case?

By Michael DiFalco

Marriages head for divorce for several reasons, but one of the most common reasons is one of the parties is having an affair. Cheating not only produces emotional stress but can also affect a divorce case.

Shockingly, cheating is considered “adultery”, which is actually a crime in New York. While it is almost never prosecuted, adultery is a Class B misdemeanor. Even though a cheating spouse may not face criminal consequences, it doesn’t mean they won’t face repercussions in a divorce.

Adultery Is Legal Grounds for Divorce in New York

In New York, you need a legal reason, or “grounds,” to petition the court for a divorce. You can either choose to file for a no-fault divorce or include fault in your reasoning. Adultery is one of the legally accepted reasons to pursue a divorce in New York.

If you state cheating as the reason for your divorce, you’ll have to provide definitive proof of the affair being consummated. Although a few decades ago it was more common to have to prove adultery, most cases now proceed on a no-fault basis in New York even if one of the parties has betrayed the other’s trust by having an affair.

The Impact Cheating Could Have on a Divorce Case

When engaging in divorce proceedings, you’ll need to cover many important legal matters, including property and debt division, spousal support, and child-related matters.

Committing adultery is not always free from repercussions. It can significantly affect one or more aspects of a divorce.

Property Distribution

Property division is one of the most critical parts of a divorce. 

New York is an equitable distribution state rather than a community property state, meaning judges divide property based on what is fair for each spouse. Only marital property is subject to distribution — not separate property that belongs solely to one spouse. 

While property division is “equitable,” it does not always result in a 50/50 split, as it depends on various factors. Fault is not one of the factors; however, a judge can consider any factor they find would be fair and appropriate.

So for example, if the cheating spouse used marital assets to fund an affair, a judge could direct reimbursement of the monies spent on the affair or grant the other spouse more when dividing assets to make up for it.


Alimony, also known as spousal maintenance or support, orders one spouse to financially provide for the other spouse if there is a need. Alimony is not guaranteed, and there needs to be sufficient enough reason to grant it.

Judges consider many factors when determining whether maintenance would be fair. While fault is not considered, “wasteful use of marital property” is one of the factors listed under the law. 

Therefore, if a cheating spouse was using marital property or assets to pay for their affair, a judge may use this information in making the decision to grant the other spouse alimony if needed.

Child Custody and Support

Child-related matters are different, because, absent any details that may endanger the child, adultery is unlikely to affect this aspect of a divorce.

Child custody decisions are based on many factors but are mainly focused on the child’s best interests. If possible, the law favors a child having both parents present in their life.

There are certain situations where the new girlfriend/boyfriend/partner is not permitted around the children initially or restrictions are put in place by the court or an agreement regarding the introduction of third parties to the children.

Child support decisions also rely on certain details, including the parents’ incomes and how many children need support. A spouse cheating is unlikely to affect this. 

Discuss Your Situation with a Skilled New York Divorce Attorney Today

The legal team at Aiello & DiFalco is ready to provide the highest-quality legal assistance for divorcing spouses in Garden City, NY. We know how challenging divorces can be, especially if adultery is what led to the end of the marriage. Aside from legal support, you can also expect emotional support from beginning to end.

Contact us today to schedule your 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.