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Can you punish your ex for adultery via property division?

On Behalf of | Nov 15, 2021 | Divorce

Infidelity causes the end of many marriages. Both sexual and emotional infidelity can deeply damage a marriage. Some couples work hard to rebuild their relationship after an extramarital affair. Other marriages end because of infidelity.

If you think that divorce is the only possible closure after your spouse has affair, you may hope for vindication through the New York family courts. Will a family law judge punish your ex for their infidelity during the property division process?

State law forbids a judge from considering marital fault

New York, like a majority of states, expects judges to apply the equitable distribution standard for marital assets during property division proceedings. A judge has to consider many factors, including how long the couple stayed married and their individual contributions to the marital relationship.

Marital fault typically will not influence a judge’s decision about property division. However, there are two situations in which one spouse may have grounds to seek a financial punishment for their spouse’s infidelity.

When they have proof and a marital agreement

Do you have photographs, text messages sent on a second, hidden phone number or other conclusive evidence of infidelity? That evidence could help you if you have a marital agreement with your spouse.

If infidelity has been an issue before, you may have included a clause in your agreement penalizing them for extramarital affairs. When you have both evidence and a contract, you may be able to ask the New York family courts to uphold the agreement you previously reached with your spouse.

When they have proof of financial dissipation

Conducting a clandestine affair is often expensive. People have to pay for hotels, dinner reservations and maybe even a vacation that they claimed was a business trip.

If your ex spent hundreds or thousands of dollars conducting an affair, financial evidence could help you in the divorce. A judge might consider funds spent on the affair a form of dissipation and adjust how they divide your marital assets to reflect that misuse of marital property.

For many people, seeking justice for infidelity through the courts will be a waste of time and resources. Creating reasonable expectations can help you resolve property matters when divorcing an unfaithful spouse.


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