My Dad was a big fan of the Eagles. Long after he passed away, I would listen to his old Eagles albums. The 1975 hit “Lyin’ Eyes” took on a new meaning after I began to practice matrimonial and family law and began to regularly have people come into my office and share the most intimate details of their lives, including on occasion, their lyin’ eyes. Dare I sound like a jaded divorce lawyer, but lots of people cheat and some of them get caught. There is the occasional reconciliation but far too often the cheating is a symptom of a relationship that has long ago ended. Then, inevitably, someone is in my office heading straight for divorce, whether the other party wants it or not.
A Walk Down “The Fault Divorce” Lane
At one point, adultery was the only way to obtain a divorce in New York. At that time, courts were very wary of couples conspiring to obtain a divorce even when adultery did not exist, leading to onerous evidentiary hurdles to prove adultery. The 1966 reforms to the Domestic Relations Law eventually added additional grounds for divorce.
2010 Enactment of “No Fault Divorce” – A Long Time Coming
Believe it or not, despite being considered a progressive state, New York has a long history of being conservative on issues regarding marriage. This is mirrored in the history of New York’s reluctance to enact No-Fault Divorce.
In October of 2010 (yes, you read that right), the great state of New York became the last state in our union to become a “no fault” jurisdiction.
Although New York is now a no-fault divorce state (where a court need not find fault on the part of either spouse to grant a divorce), a person may still maintain an action for divorce based upon the commission of the act of adultery.
Do Lyin’ Eyes Matter?
The answer to this question depends on the specific facts and circumstances of your case. If you’ve been following along with my blogs, you’ll find this to be a common and favorite answer of mine. Adultery may still be relevant to the financial portion of your case. As set forth more fully in our previous posts about wasteful dissipation (Part I and Part II), whether a spouse engaged in an extramarital affair and used marital funds to support the extramarital relationship and his or her paramour can be considered wasteful dissipation and can impact both maintenance and equitable distribution awards.
The Bottom Line
Most judges are not terribly interested in reading about the sordid details of an extramarital affair and who did what to whom, but a longstanding extramarital affair or egregious financial spending on an extramarital relationship over a sustained period of time should and must be brought to the attention of the court.
Also, it is important to understand that a divorce that begins as a result of adultery often, and not surprisingly, can set the tone for a long and drawn out case.
Finally, it’s worth noting that adultery is still a class B misdemeanor pursuant to Section 255.17 of the New York Penal Code.
The material in this blog is only meant to provide general information and is not a substitute nor is it legal advice to you. Readers of this article should seek specific legal advice from legal counsel of their choice.
Marissa Pullano focuses her practice on all aspects of matrimonial and family law, including contested proceedings regarding the equitable distribution of substantial real property and assets, child support and spousal maintenance, paternity, custody and access, and order modification and enforcement. She also has experience drafting prenuptial, postnuptial and separation agreements. Marissa believes that all clients deserve significant attention as they navigate the court system. She strives to achieve resolutions that minimize conflict, but acts as a zealous advocate on behalf of her clients in the courtroom when litigation cannot be avoided. She can be reached at email@example.com or (516) 393-8297.