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Proving adultery in a New York divorce

Last year, the New York Post ran an article revealing that Ashley Madison, the portal that connects cheating spouses, is as popular as ever despite a catastrophic data breach in 2015. The article stated that the company’s US revenue increased by 17% in 2016 and over half of its active users are female.

Until 1967, adultery was the only accepted grounds for divorce in New York State. Back then, it was seen as evidence of poor moral character, so any spouse who cheated risked losing custody of their children. This was especially true for women, even at a time when the “tender years” doctrine resulted in more mothers getting custody than fathers. Society frowned on any wife and mother who acted in ways that were contrary to traditional gender roles.

Today, adultery is no longer the sole grounds for obtaining a divorce in New York. Most couples opt for “no-fault” splits because they don’t require evidence of cheating and in most cases, adultery has little to no impact on child custody and spousal support, although it may affect property division if the spouse wasted marital funds on gifts for their paramour.

How to prove adultery

Although it’s rare, some people file for divorce on the grounds of adultery because it can potentially affect a case. For example, if your spouse is cheating on you with a convicted sex offender or leaves the kids alone while they meet with their paramour, then it can raise questions about their fitness as a parent and swing a custody decision in your favor.

Proving that they cheated, however, can be tricky, because New York law does not allow you to testify against your spouse when the grounds for divorce are adultery. You can call witnesses, but there’s always the risk that the court may regard their testimony as slanted in your favor.

In general, you have to prove that your spouse had the opportunity to cheat, meaning that they were alone with their partner for long periods of time; that they had a romantic interest in the other person (as evidenced by public displays of affection and/or emails and texts), and that they deliberately met with that person solely to commit adultery.

There is also a statute of limitations of five years. You can’t find out that your spouse is cheating on you and keep living with them, only to file for divorce on the grounds of adultery over five years later. From a legal perspective, failing to act as soon as possible means that you forgave your spouse and relinquished your right to file for divorce because they cheated.

Contact a New York divorce attorney

If you have evidence that your spouse committed adultery, then contact a New York divorce attorney who can help you protect your children and your finances and help you get the settlement you are entitled to. Jayson Lutzky is a Bronx attorney with over 36 years of experience. He handles divorce and family court cases and offers free in-person initial consultations. You may reach his office at 718-329-9500.

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