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The United States has a divorce rate of approximately 40 to 50 percent. A major factor that contributes to many divorces is adultery. Adultery occurs when one spouse engages in an extramarital affair or sexual activity with someone other than his or her spouse. In New York State, a judge may take into account any acts of adultery when determining maintenance, formerly known as alimony.

There are two paths that a couple may pursue when obtaining a divorce. These paths are as follows:

  • No-Fault Divorce
    • This means that the marriage is irretrievably broken and cannot be reconciled.
  • Fault Divorce
    • If a couple is alleging a fault divorce, the filing spouse must demonstrate one of the following grounds:
      • Abuse;
      • Desertion;
      • Incarceration; or
      • Adultery.

In New York State, a person alleging adultery must present evidence and show that there was a significant emotional impact that occurred as a result of their spouse’s infidelity. While some judges may take into account a spouse’s infidelity when determining maintenance, it does not amount to egregious conduct. This means that the wrongdoing does not have to be taken into account. It is at the discretion of the judge appointed to the case. However, it is likely that if a large portion of marital assets were used throughout an affair, a judge may determine wasteful dissipation, which affects maintenance or equitable distribution.

It is worth noting that Congress recently passed a tax bill that takes effect in 2019 and will affect those getting divorced. The new law will no longer allow the spouse paying maintenance to deduct these payments from his or her taxes. In addition, the receiving spouse will no longer have to pay taxes on the amount of maintenance that is received. With that being said, executing a prenuptial or postnuptial agreement will help safeguard each spouse’s rights, the rights of children, and can make a separation or divorce less complicated. For this reason, it is important to speak with an experienced and knowledgeable New York matrimonial lawyer to negotiate and draft the terms and conditions of a prenuptial agreement before tying the knot.

Navigating the complex legalities surrounding adultery and divorce can be difficult. The experienced Suffolk County divorce attorneys at Larry McCord & Associates, LLC can guide you through the divorce process and child custody proceedings. For more information about the firm’s services or to schedule a consultation, call our Babylon divorce lawyers at (631) 643-3084 or fill out our contact form.

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