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Adultery in a New York Divorce

As a New York State divorce lawyer with offices in White Plains, Westchester County I am always asked about the different grounds for divorce. In order to obtain a New York divorce a spouse needs to have a reason to start the divorce process this is also know as the grounds for the divorce. A divorce action is a civil lawsuit in New York and in a complaint grounds must be alleged. New York has several grounds for divorce including adultery.

What is Adultery under the Law?

Adultery is defined in New York' Domestic Relations Law section 170(4) as the commission of an act of sexual or deviate sexual intercourse voluntarily performed by the Defendant after marriage with a person other than the Plaintiff.

One single act of adultery is a sufficient ground for divorce. If the Defendant commits adultery several times or it becomes a course of conduct that will also establish grounds for a divorce based upon cruel and inhuman treatment.

How is Adultery proven?

To prove adultery the Plaintiff must present eyewitness testimony or circumstantial evidence. It must be proved that the Defendant and a third party had the inclination, intent or desire to engage in sexual relations and the opportunity to do so.

Who can testify about the adultery?

Typically testimony is provided from a person catching the spouse in the act of committing adultery or a person who witnessed the parties with the intent and opportunity to commit adultery, such as entering a hotel room together and leaving hours later, when the spouse claimed to be at another location.

A spouse, by law, is disqualified from testifying against the other in an action founded on adultery, except to prove the marriage, disprove the adultery or disprove the adultery defense after the defense and evidence of the defense has been set forth.

Defenses to Adultery

1. Procurement or Connivance – When adultery was committed with the procurement or connivance of the Plaintiff, the Plaintiff is not entitled to a divorce on those grounds. This defense is an affirmative defense and must be plead and proven by the Defendant.

2. Forgiveness – Where the adultery has been forgiven by the Plaintiff. Forgiveness may be proven either affirmatively or by the voluntary cohabitation of the parties with knowledge of the adultery. A repetition of the adultery after the forgiveness is again grounds for adultery in a divorce.

3. Statue of Limitation – Adultery must be plead in a divorce action within 5 years of the discovery of the adultery by the Plaintiff.

4. Adultery by the Accusing Spouse – A Plaintiff may be denied a divorce on the grounds of adultery because of the Plaintiff's own commission of adultery. To be successful in this defense the Defendant must show that the Defendant, if innocent, would be entitled to a divorce on the basis of the Plaintiff's adultery.

Is Adultery a crime in New York State?

Yes, adultery is a crime in New York. Under Penal Law section 255.17 a person is guilty of adultery when he or she engages in sexual intercourse with another person at a time when he or she has a living spouse. Adultery is a class "B" misdemeanor.

What if my Spouse admits to the adultery?

A spouse's admission to adultery is admissible in court if proved through the testimony of a third person or of the admitting spouse. A divorce may not be granted on the basis of a confession alone as there must be some corroborating evidence.

Considering a Divorce?

If you are considering a divorce it is important to understand all the grounds for divorce in New York State and with your lawyer select the best ground for your case. Sometimes grounds can impact other areas of a divorce case so it is a decision that must be made after careful consideration.

To contact one of our divorce lawyers at Proto, Sachs & Brown, LLP call (914) 946-4808 for a Free Consultation. Our main office is in Westchester County, White Plains but we handle all divorces in the surrounding counties of Orange, Putnam, Dutchess, Rockland and the Bronx.