Will Adultery Affect My Alimony Award in New York?


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Many cheated-on spouses feel that they have been irreparably harmed and disrespected in their marriage and that they will be able to get everything they want in a divorce because of the adultery.

Role of Adultery in New York Divorces

Adultery is a common factor in many New York divorce cases. New York spouses have the option of pursuing a no-fault divorce or a fault divorce. A no-fault divorce requires the divorcing party to show that the spouses have had irreconcilable differences for at least six months and that they are unable to get along to the point that the marriage cannot be fixed.

New York has several fault grounds for an at-fault divorce. These grounds include cruel and inhuman abuse, incarceration that lasts for at least 36 consecutive months, abandonment of at least one year and adultery. New York divorce law defines adultery as one spouse having sexual relations with someone other than their spouse. To establish grounds for a fault divorce, the moving party must present evidence of the fault grounds.

Purpose of Spousal Support

Spousal support is ordered in cases in which there are big differences between the income or resources of the parties. Spousal support was originally established to protect women who sacrificed career options to raise their children and who were unable to support themselves after a divorce. However, it has evolved to represent more situations today, such as recognizing the sacrifices that one spouse makes to support the career or business of the other spouse and being available to spouses of either gender.

There are different types of alimony that serve different purposes.

Petition for Spousal Support

Alimony is not automatic. A spouse must request alimony as part of the divorce process. If the court is asked to determine whether spousal support is appropriate and how much support should be ordered. The judge reviews several criteria when determining how much spousal support to award. This includes the salary and wages of both parties, the length of the marriage and the assets of the couple. Additionally, the court considers the age and health of both parties, where the children of the marriage live and child caring responsibilities. The court also considers whether the other spouse will need further education, has to pay for extraordinary costs and whether anything stands in the way of the spouse being able to find employment. Both parties are able to introduce evidence to support their argument regarding alimony.

Effect of Adultery on Spousal Support

Marital fault is not usually recognized when awarding alimony. Therefore, if a spouse cheats, the other spouse is not entitled to alimony for this reason alone. Adultery does not guarantee that spousal support will be awarded. New York courts can award alimony when there is egregious conduct by the paying party. However, New York courts have determined that adultery alone is not adequately egregious.

However, if a spouse can show that a significant portion of marital assets was used on the affair partner, the court can find that there was a wasteful dissipation of the marital estate. The judge could then use this information when making decisions regarding spousal support and property division in the divorce.

Tax Effects

Traditionally, spouses paying alimony got to report this support and deduct it from their income. In contrast, recipients of spousal support were required to pay taxes on any support payments they received. With tax law changes in 2018, one important change will be that parties will no longer be able to deduct alimony. The new law is set to go into effect in 2019. Divorce experts are concerned that this change will make divorce negotiations harder because spouses will have less incentive to agree to spousal support since they will not be able to deduct these payments.

Prenuptial Agreement

If the couple had a valid prenuptial agreement, this agreement may dictate how much alimony is paid. Some couples have prenuptial agreements with adultery provisions that require alimony and in a certain amount if the divorce is based on adultery.

Contact a New York Divorce Lawyer for Assistance with a Divorce Case

If you would like more information on spousal support in New York divorces and how adultery may affect a spousal support award, contact a New York divorce lawyer for assistance. He or she can explain New York divorce laws and how they can impact you. He or she can also review any prenuptial agreement and explain your rights pursuant to the agreement.

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Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer.

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