Adultery (NYPL 255.17)

Adultery, from Latin adulterium, is the voluntary and consensual intercourse by a married person with someone other than his/her spouse. It is considered objectionable on social, religious, moral, or legal grounds.

In most countries, adultery itself is no longer a criminal offense, but it is a common cause for spouses to separate and divorce. Adultery may still have legal consequences, particularly in divorce cases. In New York, adultery by a spouse may be considered by the court in different aspects of the divorce.

New York divorce law changed on August 15, 2010, when Governor David Paterson signed no-fault divorce into law in New York state. Until 2010, New York recognized divorces only upon fault-based criteria or upon separation. In New York, divorce may be considered “no-fault” or “at fault” .

Since 2010, a divorce may be considered “no-fault”, if the relationship between husband and wife has broken down irretrievably for a period of at least six months (DRL §170.7). This means that the spouses are unable to remain married because of their differences. An “at fault” divorce can be obtained due to the following:

  1. Cruel and inhuman treatment (Domestic Relations Law, DRL §170.1);
  2. Abandonment for a continuous period of one year or more (DRL §170.2);
  3. Imprisonment for more than three years subsequent to the marriage (DRL §170.3);
  4. Adultery (DRL §170.4).

Adultery is difficult to prove as it requires corroborating evidence from a third party. The law requires that you provide evidence of the adultery from a third-party, such as a private investigator. Direct proof, such as photos, video, recordings, or explicit emails and indirect proof, such hotel or credit card records must be supplied to the court. A statement by the defendant that he/she had sexual relations with a third party is not legally admissible to permit the court to grant a divorce to the plaintiff.

Adultery. N.Y. Pen. Law § 255.17

A person is guilty of adultery when he engages in sexual intercourse with another person at a time when he has a living spouse, or the other person has a living spouse.

Adultery is a class B misdemeanor.

If the adultery was condoned and the cheated-on party knew about the extra-marital sexual relationship but continued to stay in a marital, conjugal relationship with their spouse, the adultery cannot serve as a cause for divorce.

Higher conflict divorce cases often cause more emotional harm on the parties, specially when children are involved. If you have questions beyond adultery, you should contact an experienced criminal attorney for advice and to ensure your rights are protected during the divorce process. If adultery is the cause of your divorce, you have the option of filing for divorce based on adultery or on no-fault grounds.