If you have been following along with our blog posts, you will know that we recently posted about adultery. Luckily for us, five (5) days after our adultery blog was published, the Appellate Division, Second Department published a decision discussing this exact topic. In Agulnick v. Agulnick[i], the Second Department was presented with a case in which the wife alleged that the husband committed adultery with their children’s babysitter.

You might ask, well why would the wife even allege adultery? Didn’t you previously tell us New York became a no-fault divorce state in 2010? And you would be correct. New York is a no-fault divorce state; however, a person may still maintain an action for divorce based upon the commission of the act of adultery. In Agulnick, the wife had a lot to gain if she was able to prove adultery on the part of her husband.

The parties in Agulnick had a post-nuptial agreement from 2006 wherein the husband had admitted to committing prior acts of infidelity. As a result, in the parties post-nuptial agreement, the husband agreed that if he engaged in certain sexual contact with a third party thereafter, the wife would receive: (1) 80% of his future gross lifetime earnings from all sources (minus FICA); and (2) 80% of all marital assets. He further agreed to pay 100% of certain defined liabilities and pay the wife her marital share of the value of his medical license. In other words, the wife would make out like a bandit if she could prove that her husband cheated.

So what happened? Well, the wife, in her verified amended answer included a counterclaim for adultery alleging that the husband cheated on her with the babysitter and the husband immediately moved to dismiss the wife’s counterclaim. When the husband’s motion to dismiss was denied, he wasted no time and shortly thereafter filed a motion for summary judgment again seeking the dismissal of the wife’s counterclaim. The supreme court initially denied the husband’s motion, but on appeal, the Second Department reversed. Importantly, the Second Department visited the old law related to adultery and attempted to bring the 1877 decisional authority into the 21st century.

Since approximately 1877, courts have held that adultery may be circumstantially proven using a three-part test consisting of (1) a lascivious desire, (2) the opportunity to gratify the desire, and (3) acting upon the desire.

In Agulnick, based on the allegations of the wife, the court took issue with the “opportunity” prong of the test. Due to the ever-changing status of our society, the court refused to allow the “opportunity” prong to continue to mean mere “proximity.” In other words, just because a man and a woman are in close proximity to each other (i.e. working at desks next to each other), should not mean the man (or woman) has the opportunity to engage in an extramarital affair. The court noted that the elements for adultery date back to a time when women were rarely in the workplace, and if they were, they were not side-by-side with men like they are today. Particularly relevant to this case is the fact that today, certain employees, such as nannies and babysitters, may reside at their employers’ homes. Additionally, when the elements for adultery were created, society was not as mobile as it is today. People could not simply jump on a plane and be in another state or another country in a mere few hours.

Instead, the court found that “opportunity” must mean “proximity plus.” The court gave examples of what the “plus” could be. The court’s examples included a hotel receipt for two, two plane tickets to a destination out of the norm, suspicious or incriminating e-mails or other writings, flirtatious behavior, frequent get-togethers in non-professional settings, or even a suspicious conversation overheard by a witness. But note, proving any of the above mentioned things does not mean you will ultimately prove adultery; it just means that an inference may be drawn that a “party’s acts are more consistent with guilt than with innocence,” which is sufficient to overcome summary judgment[1].

Ultimately, the court held that the husband met his burden of proof and granted him summary judgment dismissing the wife’s counterclaim for adultery. Both the husband and the babysitter submitted written affidavits in which they swore under oath that they, amongst other things, “never engaged in a sexual relationship of any kind or nature” with each other and that their relationship was “at all times . . . in a professional working capacity.”  Further, the wife could not point to a single fact or piece of evidence to show any adulterous conduct between the husband and the babysitter. She gave no dates, no witnesses who observed behavior, no photographs, no texts, emails, etc. Instead, it seems as though the wife’s suspicions existed only because of what she could have gained as a result of the terms of the post-nuptial agreement.

We have decided to blog about this case because it provides both an interesting fact pattern and provides a recent court’s analysis of adultery in the context of today’s society.  That being said, every matrimonial matter is fact specific with its own unique history and circumstances, especially when allegations of adultery are raised. For this reason, the material in this blog is only meant to provide general information and is not a substitute nor is it legal advice to you. Samantha M. Guido can be reached at sguido@jaspanllp.com or (516) 393-8250.

[1] Summary Judgment is a procedural device utilized to allow for the speedy disposition of a controversy without the need for a trial.

[i] 2020 NY Slip Op 07333 (2d Dep’t 2020).