How a Cheating Spouse’s Behavior Impacts the Divorce

How a Cheating Spouse’s Behavior Impacts the Divorce

Divorce is hard enough on its own, but even more so when infidelity is involved. In these scenarios, emotions are bound to run high prompting many to wonder how a cheating spouse’s behavior impacts a divorce. This is normal, because divorce is not only a legal process, it’s also deeply personal.

If your spouse has cheated on you, you might hope that the legal process and its outcomes will somehow reflect that betrayal in your favor. But you must know, an affair can affect divorce property distribution only in limited ways.

Whether adultery affects your divorce settlement financially or not, it is the emotional fallout from the affair that can leave a significant mark on your divorce process. The fact is, divorces involving infidelity require a sensitive and astute legal hand to properly resolve your issues.

It is also important to realize that divorce laws vary from state to state. This is why it’s important to consult with a lawyer in your state to hear how infidelity might be viewed. This article will explore how a cheating spouse’s behavior impacts a divorce in New York State.

Are There Legal Consequences to Committing Adultery in New York?

On its own, adultery or cheating by either spouse is not likely to affect a divorce in New York, but the nature or impact of the affair on you and your family might make a difference.

New York, although a no-fault state since 2010, recognizes adultery and six (6) other grounds for divorce (one no-fault). However, the Courts strongly encourage that divorce litigants proceed on the no-fault ground of D.R.L. §170 (7) which provides that the relationship between husband and wife has broken down irretrievably for at least six months, provided that one party has so stated under oath.

Learn about the difference between a fault and no-fault divorce by checking out this article, “Fault Divorce vs No Fault Divorce: What You Need to Know.”

Fault divorce helps you avoid arguing over the reasons behind your split. This makes the process easier and simpler, especially if you have children. You save time and avoid the added emotional pain of reliving your marital mistakes in court or the negotiation table.

It’s true that adultery itself may not affect your divorce outcome, the cheater’s actions while committing adultery might make a difference for child custody, or property division. This is why when considering how the affair can impact your divorce, it’s important to think with your brain and put aside your emotions.

Can Adultery Affect Your Divorce Settlement in New York?

New York is an equitable distribution state where couples split their assets and debts equitably in a divorce. As many of you may know, this does not mean an equal division of assets. The New York Courts take into consideration various statutory factors in their determination.

Understand more. Read “Divorce Property Division: Community Property States vs. Equitable Distribution States.”

A New York Divorce lawyer can help you evaluate how an extramarital affair could affect the final terms of your divorce. The answer will depend on the specific facts of your case. In general, judges don’t consider adultery when determining maintenance between divorcing spouses.

However, cheating can affect your divorce terms in some limited circumstances. These include:

  • If a cheating spouse spends marital funds on their extramarital affair (including gifts, hotel bills, or other financial support) that spouse may be responsible for reimbursing the marital estate for those funds. When dividing your property, the cheating spouse may receive less in assets or funds to compensate for their extramarital spending. As the harmed spouse, you must show evidence to prove your claims.
  • If a cheating spouse leaves your marital home, prior to the resolution of all custody and visitation issues, this could negatively affect their custody and visitation entitlements.

If you suspect or know that your spouse is having an affair, it may be wise to investigate how the affair affected your marital monies. An investigation could involve a forensic accounting or audit of all your jointly owned assets or bank accounts to discover any unfamiliar transactions.

Before embarking on hiring a forensic accountant or conducting an audit, however, you and your divorce attorney should have a frank discussion regarding the costs associated with the retention of a forensic accountant, or any similar professional, and weigh these costs against the amount of any financial recovery to which you may be entitled. Will it be worth it?

Your attorney will know what to look for and can help spearhead this investigation.

If you are thinking about or beginning divorce, you’ll want to check out this complete list of things to help you stay organized and protected: “55 Must Do’s On Your Modern Divorce Checklist.”

A cheating spouse with an extramarital affair cannot take away what is rightfully yours under the law. Fortunately, New York family law can work to “make you whole” in a divorce, by balancing the terms of your final property division to make up for the wasted funds.

In New York, Can a Cheating Spouse’s Behavior Impact Child Custody in a Divorce?

As mentioned, divorce can be even more stressful when you have children. An affair can make coparenting more difficult, especially if feelings are hurt. If you end up sharing custody of your children, your kids may end up living part-time with their other parent and their new partner. It’s normal to have concerns about their staying under the same roof with someone you don’t know, or do know and don’t like because they were complicit in the affair.

While adultery on its own won’t affect the outcome of a child custody case, certain facts could become relevant when considering the best interests of minor children.

A court may consider adultery a determining factor in custody issues if:

  • The cheater’s behavior has caused actual emotional harm to the child, or
  • The adulterous relationship would adversely affect the child’s home environment.

If you want to challenge your spouse’s right to custody on either of these claims, you must have actual evidence to show as proof. The state of New York encourages children of divorced couples to maintain healthy relationships with both parents. Merely engaging in an affair isn’t enough to qualify a parent’s behavior as adverse or harmful under the law.

When it comes to custody, courts want to see both spouses put their emotions aside — the anger, the hurt, and betrayal — for the well-being of their children. Holding a grudge or trying to use the legal system or family court to punish your spouse for cheating may actually undermine your own case for custody.

Learn more about child custody in this important piece, “Child Custody: 6 Things a Divorcing Mom Must Know.”

But if you must show actual evidence, it would be relevant to show proof of potential harm or adverse effects, like:

  • Your ex-spouse’s new partner having a documented history of violence or abuse
  • Your ex-spouse’s new relationship causing them to neglect your children; and/or
  • Your ex-spouse taking reckless or dangerous risks for the affair

In order for your claim to be impactful, you must present actual evidence or testimony showing an adverse effect on your children’s safety when they stay with your ex-spouse.

Again, this is something you don’t want to embark on lightly. It is best to discuss this with a good divorce attorney who can help you understand what is and is not possible given your story.

Check out how to “Find a Good Divorce Attorney,” or if you live in New York Metro-Area, you are invited to reach out to the attorney who wrote this article. Her contact info is below.

Divorce is often complicated and can be very painful. Infidelity only raises the emotional stakes. But it’s important to know that you cannot seek emotional justice in the court system. A divorce lawyer in your state can help smooth out the process and advocate on your behalf to achieve the best outcome for you and your children. Although difficult, you will want to do your best to focus on the healthy priorities.


Aoife Collins is an experienced attorney with a reputation for excellence in legal counsel, representation, settlement and litigation.

Across Aoife’s diverse career she had the opportunity to serve in a variety of roles including a competitive Federal Clerkship, Associate and Counsel roles with prestigious NYC-based law firms representing high-profile clients in family law matters, including the negotiation and drafting of prenuptial, postnuptial, separation agreements, custody, visitation and support matters, and the valuation and equitable distribution of marital assets. Throughout her work, Aoife’s common thread has been her reputation for excellence in providing legal counsel, representation, contract drafting, and litigation. Aoife can be reached directly at (646) 241-8602 or


Since 2012, smart women around the world have chosen SAS for Women to partner them through the emotional, financial, and oft times complicated experience of divorce and rebuilding their lives. Schedule your FREE 15-minute consultation with SAS. Tell us confidentially what’s going on, and we’ll give you black & white feedback, resources and suggestions for your next steps.


*We support same-sex marriages. For the sake of simplicity in this article, however, we refer to your spouse as your “husband” or a “he.”

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  1. Stephanie McNease on April 29, 2024 at 15:08

    Do you know any case law in Ny where cheating has affected the children. My daughter wants nothing to do with him. No matter how much I encourage it.

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