Should I Seek A Divorce Based On Adultery

Does the "Scarlet A" make a difference in NY divorce results? For most people the answer is probably not other than perhaps the emotional victory as to proving fault and a small additional sum of money to recoup what was spent from marital assets.

NY years ago fell in line with the other states in the US and permitted No-Fault Divorce. Even prior to the passage of No-Fault divorce, the number of divorces granted on adultery was very small for several reasons: including the difficulty of providing proper proof (as one spouse's testimony was by itself not enough), that there would be a prolonged fight over the grounds for the divorce which would make the litigation more expensive vs the usual "constructive abandonment" (the no sex allegation for at least on year) and that even if proven the ultimate effect on asset distribution and custody was often non-existent. For those rare cases where there were people in the public eye, politicians, celebrities, sports stars or corporate stars then there was leverage to avoid embarrassment and disclosure of the misdeeds. However, for most typical parties in a divorce the benefits of the adultery grounds was small.

NY law does not permit depositions and discovery to prove divorce grounds. Therefore, discovery is limited to financial issues. It still is entirely appropriate to inquire about marital monies spent by the alleged adulterer on the girlfriend or boyfriend. Again while this may sound great unless there were larger expenditures that could be proven the impact was limited. If you could show through bank statements the withdrawals and credit card purchases on the gifts, hotels, vacations, dining out, sports, concert and theater tickets then there was a road to recovering half of what was spent. (Keep in mind that half of the money belonged to the spending person.) I have had cases with jewelry purchases, trips, love pad rent paid and in such cases the impact can be substantial and lead to a better financial result. However, if the spending is between $1,000 - $2,000 proof of an occasional dinner, incidental purchases and sporadic flowers may not result in enough additional money other than a quick negotiation for approximately half of what was spent. When clients are paying lawyers by the hour the time spent to obtain documentary proof and negotiate will often eat up the benefit unless there are larger sums involved.

The impact on custody and parenting time is often more dependent on the other traditional custody factors that are often given more weight than the adultery grounds for divorce. The parent that will encourage the children to have a healthy relationship with the other parent has become the paramount factor in custody decisions. Other factors include the ages of the children, the relationship of the children with each parent, the proximity of the non-custodial parent to the children, the income and ability to foster the development of the children to name just a few factors. So more often than not other than in cases involving domestic violence, adultery will not likely change the amount of parenting time. Joint custody is more the norm these days so long as the parents can civilly communicate.

So unless your situation falls in the area where a significant financial impact can be obtained, it is often better to stay focused on the main issues which include: custody, parenting time, child support, spousal support, division of assets/debts, occupancy of the marital residence and attorney's fees. Of course you should discuss all of your concerns with your attorney and seek their opinion as to what financial benefits may come from pursuing adultery grounds and then consider the advice in making your decision.