Believe it or not, adultery is still a crime in New York. Section 255.17 of the New York penal code provides, “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.” In New York, Class B misdemeanors are punishable by up to 90 days in jail or a $500 fine.
As a practical matter, you’re unlikely to be criminally prosecuted for adultery in New York. However, adultery can become an issue in divorce proceedings. If you have questions about adultery and divorce, it’s important to speak to an experienced New York divorce attorney.
Why Does New York Criminalize Adultery?
Marital infidelity laws extend back to the Old Testament. Back then, adultery was considered a capital offense. The term “adultery” stems from the notion of “adulterating,” or contaminating the family bloodline. A New Jersey court once wrote in 1838, that the law does not criminalize adultery because of the wife’s alienation of affections or loss of comfort. Instead, the law criminalizes adultery because of “its tendency to adulterate the issue of an innocent husband, and to turn the inheritance away from his own blood to that of a stranger.”
Today, in New York, adultery is most likely still on the books because no politician wants to risk the optics. Publicly opposing the law and advocating for its repeal may very well create a public relations backlash.
Will the DA Prosecute Me for Adultery in New York?
Not likely. New York has prosecuted only a handful of individuals for adultery since the 1970s. Most of these cases were seen in Upstate New York and most cases were eventually dropped. It has been observed that usually prosecutors will include the adultery charge with other more serious offenses. If the defendant pleads guilty to the more serious charges, then the prosecutors will usually drop the adultery charge.
Although there is no real risk of being jailed for adultery, adultery still has a tremendous significance during a divorce. If your spouse chooses to use adultery as a ground for divorce, instead of the no-fault ground (marriage has been irretrievably broken at least 6 months prior to commencing the divorce case), then you will find yourself in a high-conflict divorce, which is more costly and emotionally more strenuous.
How Do You Prove Adultery During a Divorce Trial?
In New York, a finding of adultery must be based upon clear and convincing evidence. Mere suspicion that one of the spouses committed acts of adultery is not enough. Also, a divorce may be granted even if only a single act of adultery is found.
One may prove adultery with circumstantial evidence. Since at least 1877, New York Courts have used a three-part test: (1) a lascivious desire, and (2) the opportunity to gratify the desire, and (3) acting upon the desire. Additionally, in proving adultery, a spouse must also prove "the commission of an act of sexual intercourse, [or other] sexual conduct, voluntarily performed by [a spouse], with a person other than the [other spouse] after the [spouses'] marriage." NY Domestic Relations Law § 170(4).
You can establish adultery with the testimony of a third person who is not a party to the adultery. It’s not uncommon to have a private investigator testify against you. Moreover, circumstantial evidence is commonly abundant in the form of Facebook, Tinder, and other social media posts, as well as more traditional records like credit card statements.
How Do You Defend Against a Claim of Adultery During Your Divorce?
There are three general defenses to a claim of adultery in New York. The first is forgiveness. This could be proven by showing you resumed marital relations after your spouse found out. The second is condonation—where your spouse approved of the affair. The third general defense is that your spouse committed adultery as well. In this instance, neither of you would be entitled to a fault-based divorce based on adultery.
What Happens in a Divorce If You Commit Adultery?
The act of committing adultery in New York does not by itself entitle your spouse to a greater share of the marital assets, or a larger child support or alimony (in NY known as spousal maintenance) award. However, a court may offset your equitable share of marital property to the extent you used marital funds to fund your affair. Courts call this “marital waste.”
The real danger in committing adultery is whether your spouse will seek to use adultery as a ground for divorce. As stated above, the costs of proving such acts during a trial are astronomical both financially and emotionally.
Trust an Experienced Divorce Lawyer
Divorce when one spouse cheats is one of the highest conflict areas in divorce law. If you are facing a claim of adultery in your divorce, don’t go it alone. Contact a seasoned attorney who knows how to fight for both your assets and your good name. We are here to listen to you and to help determine your best options. Contact the Stepanian Law Firm today for a free consultation.