Is Adultery a Crime in New York?

Adultery is a class B misdemeanor punishable by up to 3 months in jail or one year of probation.

According to New York State Penal Law Section 255.17, a person is guilty of adultery when they engage in sexual intercourse with another person at a time when they have a living spouse or the other person has an alive spouse.

Cheating on your spouse is a crime in New York State. However, that does not mean you or your spouse are getting thrown in jail anytime soon.

Although adultery constitutes a crime "on the books", it is generally not prosecuted in New York State. However, being the victim of an adulterous spouse can put you at an advantage in divorce court as it can have financial ramifications on both spousal support and the equitable distribution of assets and debts.

New York State Divorce Laws, under DRL 170(4) The commission of an act of adultery, …, is hereby defined as the commission of an act of sexual or deviate sexual intercourse, voluntarily performed by the defendant, with a person other than the plaintiff after the marriage of plaintiff and defendant. Adultery means sexual intercourse, and anything less is not sufficient for the court to grant a divorce. Adultery can be proven by direct or circumstantial evidence. There are four defenses to adultery in DRL Section 171; including (1) The plaintiff caused or consented to the adultery; (2) The plaintiff has forgiven the defendant; (3) More than 5 years have passed since the discovery of the adultery. DRL 210; (4) The plaintiff has also committed adultery.

A claim of adultery can affect equitable distribution in a divorce action. For example, if a spouse spends excessive amounts of money on their paramour, the court can decide that this was a wasteful act of marital assets and award maintenance/alimony or additional marital assets to the non-cheating spouse.

In today’s world, it is easier than you think. Social media; Facebook, Instagram, Snapchat, Seeking Arrangements, Tinder, Match.com, Craigslist, Meetup, Plenty of Fish, international dating sites, and other social media all leave a trail of cheating. This, with the more traditional methods, such as bank accounts, credit card charges, video, private investigators, friends, and family all can be used to prove a claim for adultery.