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News about Divorce Law in New York State
Articles on New York Divorce Law
Nov 2019What is a separate property credit?
Oct 2019Can I modify my New York Divorce?
Oct 2019How to get a Divorce in New York
Sep 2019Divorce Overview
Mar 2019Can I sue for Adultery?
Jan 2019WHAT DO I TELL THE KIDS?
Dec 2018DO I NEED A LAWYER IN FAMILY COURT
Dec 2018CHANGES IN DIVORCE LAW
Dec 2018Family Offense
Oct 2018Can I apply for Custody?
Oct 2018Must I sue for custody?
Oct 2018WHAT IS A RJI
What are the substantive issues in a divorce action
February 18, 2020
What to think about when you are getting a divorce?
Divorces are expensive. That is because lawyers typically get paid by the hour. If you live in a densely populated city, it is likely that the hourly rate will be higher than you would expect.
You need a divorce lawyer if you are going through a hotly contested divorce or child custody matter.
The primary things that a divorce judge will look at in a New York divorce action:
If the marriage has become acrimonious the spouses tend to let their emotions get in the way of good business decisions. As such, before you get into court or, better yet, before you file for divorce it is a good idea for you to sit down and discuss how you would like to divide your assets. Start with personal items and move on to more important financial accounts. Also, if either of you have a retirement plan through your employment start to discuss how best to divide those retirement accounts.
Grounds are the least of your concern in New York since the Court prefer that you opt for the no-fault divorce option.
If you have children, start to acclimate yourself to the fact that courts favor joint custody, at least regarding making decisions about the children that affect their welfare. The courts also encourage liberal custodial access to the children.
As to spousal support, the New York Maintenance Guidelines will help you determine how much support you may be entitled to and the length of time in which you can expect spousal support to be paid.
As to child support, there are also guidelines in New York called the Child Support Standards Act.
Prioritize what you want in a divorce action.
Once you familiarize yourself with the basic issues in your divorce action you can better negotiate terms with your spouse. It is not worth fighting over who gets the bed or who takes the coffee machine. This can often lead to the breakdown of the negotiation.
If you can resolve the above issues, then it is important to let both attorneys know in a letter or email so the attorneys can write it up in an uncontested fashion.
If you cannot resolve these issues, then expect that the matter might end up in court.
By: Your New York Divorce Lawyer Lisa Beth Older
Can I appeal a Family Court Order Divorce Judgment
November 20, 2019
Can I appeal a Family Court Order or a Judgment of Divorce in New York?
Appeals from decisions and orders of the lower court are complex to perfect. Not all orders are appealable as a matter of right. For instance, a temporary Order can not be appealed unless you make a special motion to the Appellate Division asking for leave to appeal. You must also know that even if the Appellate division accepts your motion and allows you to appeal the lower court action is still pending at the same time before the same judge and that judge will be aware of the fact that you appealed its temporary order. Sometimes you can ask for a stay of the lower court order until the Appellate Division makes its ruling but even after it does make its ruling the court will likely send the entire matter back to the same Judge you had. If you are appealing a Final Order or Decision, then it must be known that if you lose your appeal the case will likely be sent back to the trial judge. If you prevail on some points but lose on others, then the court will send the case back with instructions to the trial judge to make a ruling consistent with the holdings they made in the Appellate Division Decision.
Just filing a Notice of Appeal is not enough though it is imperative that you file one to protect your rights in the courthouse in which your case was heard and be sure you also serve it on your adversary.
You also need to perfect the appeal by following the Appellate Division court rules of practice which are very detailed and complex. These rules can be found on the New York Government website. This consists of preparation of Briefs which are formatted in accordance with the rules of court. The rules of practice vary between Appellate Division Departments so be sure to read the rules that appertain to the county in which your appeal will be heard. The form of the brief in the Second Department is governed by rule 50.8. Even the cover of the brief must be in accordance with the rules of court. The cover must include the titles of the case and in the upper right-hand corner it must ask for how many minutes you are requesting for oral argument and the name of the attorney you select to argue it, along with the name, address, email address, and telephone number of said attorney. The brief itself is also highly regulated as to form. In all departments, the form the brief takes are usually uniform. But you should check the practice rules before you write and submit a brief. The Appellant’s brief should have a table of contents, and under that should be listed points you wish to make, the contents of the appendix with references to each document you will address by page number including direct, cross and redirect, a table of case law indicating the page where the case can be found, a express articulate separate Statement of the issues and questions you want the court to address, a two page neutral restatement of the questions involves with the answers directly below, a statement of facts of the case with citations to the record, a certification statement by the submitting attorney, the argument you intend to make as appellant, divided into distinct points, a statement stating under oath that you are in conformity with printing requirements, a CPLR 5531 Addendum, a copy of the order you are appealing from and a copy of the Notice of appeal. There exist many other rules which you can find on the government website, but the above requirements will give you an idea as to how complex appeals really are. The Respondent is required to perfect their appeal in a manner consistent with the above rules, with some deviations therefrom. I always tell my clients to order the lower court transcripts and exhibits admitted into evidence before even retaining our services. Then, of course, you must write the brief consistent with the table of contents so the court may follow your thinking, Moreover, there are printing and filing and service of process rules that need to be followed and that need further filings with the court. An appeal generally takes a month to draft and several months before a court will render its decision. I would strongly recommend that you retain counsel before you try to file an appeal given the above complexities but if that is not an option then the web site will help guide you and the clerk of the court will assist on any non-legal question you might have.
I hope this has been instructive, but it is not legal advice, see a lawyer before you attempt to file any Notice of Appeal or Appeal since any mistake can be fatal to having your case heard in the appropriate court
Your Bronx Divorce Lawyer and Bronx Child Custody Lawyer
Lisa Beth Older
What is a separate property credit?
November 6, 2019
What is a separate property credit?
In a New York diovrce case, when a home is purchased with funds acquired prior to the marriage and you put both names on the deed, you may still be entitled to a separate property credit against the sale proceeds of the marital real property if you can trace the source of the fund back to a separate property asset, and if you have not comingled marital funds or marital earnings into that account.
This is because commingled funds, verses mere title transmutation into joint names, are precepts that are dealt with differently in their entirety, under all the case law. Contrary to merely changing title to the property, the commingling of funds almost always defeats a separate property characterization as well as a separate property credit.
This is a well settled concept of divorce law in New York. The Court must first classify the property at issue as marital verses separate. They next distribute it via equitable distribution at trial.
As to any marital asset acquired with one of the parties' separate funds, even if the asset is classified as marital by the court it is not always distributed equally. In point of fact, it is pretty settled law that the person contributing their separate property receives a dollar for dollar credit for any separate property fund. (see e.g. Juhasz, 59 A.D.3d at 1024, 873 N.Y.S.2d 799; Murphy, 4 A.D.3d at 461, 772 N.Y.S.2d 355; **1044 ***788 Judson, 255 A.D.2d at 657, 679 N.Y.S.2d 465; Heine,176 A.D.2d at 84, 580 N.Y.S.2d 231).. “In these situations, courts have usually given the spouse who made the separate property contribution a credit for such payment before determining how to equitably distribute the remaining value of the asset …”(see e.g. *168 Zurner v. Zurner, 213 A.D.2d 906, 908, 624 N.Y.S.2d 301 [3d Dept.1995], lv. denied 87 N.Y.2d 802, 638 N.Y.S.2d 425, 661 N.E.2d 999 ; Burns v. Burns, 193 A.D.2d 1104, 1106, 598 N.Y.S.2d 888 [4th Dept.1993], mod. on other grounds 84 N.Y.2d 369, 618 N.Y.S.2d 761, 643 N.E.2d 80  ).
Next, in distributing the appreciation in value of the real estate a court may consider any of the several isted factors enumerated in Domestic Relations Law § 236(B)(5)(d) or any other factor that is equitable in their estimation. (see e.g. Butler v. Butler, 171 A.D.2d 89, 93–94, 574 N.Y.S.2d 387 [2d Dept.1991]; Woodson v. Woodson, 178 A.D.2d 642, 642–643, 578 N.Y.S.2d 217 [2d Dept.1991] ), including each of the parties’ indirect efforts and contributions as well as any passive increase in the market value.
For example, in the first department case of Heine v Heine 176 A.D.2d 77 the Appellate Division credited the husband with the amount of the down payment, classifying it as the Husbands separate property and left only the appreciation in value subject to determination as to equitable distribution at trial.
In the first Department case of Klauer, the court there, the parties sold a marital property and then commingled the sale proceeds of that marital real property with plaintiff’s separate 325K trust fund (big mistake) and the parties next bought a second piece of marital property out of that commingled fund. There, the court also expressed that Plaintiff’s separate trust fund, which was formerly separate, lost its separate property character when it was commingled with the parties marital real property sale proceeds. Those parties next bought a second property with these mixed, transmuted, commingled funds so the court properly held that the second purchase was marital. In other words, the court did not award a separate property credit because of the commingled nature of the source of the down payment, and for no other reason. The court concluded, in its support of its decision, and held, that the property was marital not subject to a credit since Plaintiff failed to rebut the presumption of marital property where the source of the down payment was derived from comingled funds.
But even if there was comingling, the court still recognized the plaintiff’s extraordinary monetary separate contributions of Plaintiff in its distributive award, awarding her 70 percent of the sale proceeds, anyway, this despite the fact that the separate property credit was formally obliterated by the commingling.
By Your Manhattan and Bronx Divorce Lawyer
Lisa Beth Older
And also see citations referring to case law.
Can I modify my New York Divorce?
October 31, 2019
Can you modify a Divorce Judgment?
There are many times when you may modify marital agreements but always check with a lawyer before attempting to do it yourself because you may only do so if circumstances allow or permit. As to equitable distribution of real property generally speaking you may not modify this type of agreement or judgment unless both parties consent to modify the underlying Agreement or judgment of divorce. However, you can possibly move for modification under very limited and narrow circumstances, such as a showing of blatant fraud or extreme duress.
Apart from equitable distribution, the terms of a martial agreement and judgment of divorce may indeed be modified under certain circumstances.
First, if by the terms of the agreement itself, it is modifiable, then you may modify it on consent so long as the execution of the modification document is performed in accordance with the rules of law requiring acknowledgment of the document in a manner prescribed by New York Law.
Or, if you cannot modify it on consent you may petition the court for modification so long as you can demonstrate enough grounds to do so. For instance, if the Agreement says either party may petition the court for additional custodial time in three years from the date of the execution of the agreement without a showing of a change in circumstances generally the courts will allow that petition to move forward.
While Child custody agreements are generally binding as per the terms of the agreement or divorce judgment, except upon a showing of a change in circumstances, you may apply to the court to modify a custody agreement if you can show a change in circumstances and that the best interests of the children are best met through modification. If one or both spouses wish to relocate with the child, that would be a change in circumstances. If one party is abusing the child, then that would also constitute a change in circumstances warranting a petition for modification of the child custody order or judgment,
In the alternative, the parties can modify the agreement on consent between themselves so long as the document is executed and acknowledged in accordance with the Domestic Relations Law. If there is a Family Court Order that needs to be modified and you have an agreement with the spouse or parent, then be sure to go to Family Court to have the agreement so ordered by the court.
As far as modification of the terms of a child support or spousal support (maintenance) order or judgment, this may be possible if one or the other of the spouses becomes unable to work. Further the increased needs of the child might serve a basis for an upward modification petition.
But you must show a substantial change in circumstances to modify a support order or the court might dismiss your petition.
Do not make the mistake of assuming that because you lost your employment you no longer have to pay under the Order of Support of Divorce Judgment. Any money that you owe your spouse due to your default under the Order remains owed to the other party even after you file for a modification of your obligation to perform on the underlying order or Judgment. If you are in fear of not being able to meet your support obligation the best thing to do is make an application for modification before you fall into arrears. If you fall into arrears, it is unlikely that the court will waive those arrears unless you can show why you could not file sooner. Even then, the likelihood of a Court waiving arrears is rare.
By: Lisa Beth Older
Your New York City Divorce Lawyer
How to get a Divorce in New York
October 23, 2019
People always ask me what the residency requirements are in order to get a judgment of divorce in New York State. In order to get a judgment of divorce in New York State usually both parties must live in New York for at least two years. There are exceptions to this rule. The general standard for most divorces is at least one year of residency prior to the filing for divorce. But there are other ways to satisfy the residency requirement. If you or Your spouse has been living in New York for at least one year before the divorce case started and you were married in New York or you lived in New York as a married couple for one year you can satisfy residency. Another way you can satisfy residency is if the grounds for your divorce happened in New York State And both parties have lived in New York for at least one year. Otherwise, if one or the other of you have been residing in New York for at least two years you can get a divorce. The grounds for divorce have changed. There are seven grounds for divorce however the most commonly used one is the so-called no fault ground or otherwise known as irretrievable breakdown in the relationship for six months. You can also still sue one other ground such as cruel and inhumane treatment, abandonment, imprisonment, adultery, divorce after the execution of a separation agreement that has been filed with the clerk of the county, and divorce after there has been a judgment of separation entered.
In New York State the only court that you can go to get a divorce is the Supreme Court. If you want to be the plaintive in the action you must soup for divorce first and serve your husband or wife. We do not have common law marriage is in New York. However, speak to your attorney about this because there could be exceptions such as where there have been partnerships in financial relationships that occurred prior to any marriage.
Just because you sued for divorce does not mean you will automatically get one. Divorces are complicated when the other spouse disagrees with how the property of the parties will be disposed of, child support issues, custody issues, and even spousal support issues. For more information on these issues always speak to a lawyer before trying to file for a divorce.
If you have financial issues, there is a way to go about resolving them without first going to court. You can apply for the alternative dispute resolution process. During this process you work with an attorney to help find a solution. There are two kinds of processes in this area. There is divorce mediation and there is collaborative divorce. However, when you start your divorce if you have no children and no property you might be able to go about it through the uncontested divorce program. These papers are found online.
If you cannot afford an attorney and you have elected to start your divorce on your own, then be sure that you have someone personally serve your spouse through a third party and be sure that said third-party has executed an affidavit of service before a notary. This affidavit of service must be filed with the county clerk’s office before your New York divorce case may be considered by a judge. The next step, if you cannot settle your custody support and property issues, is to ask for judicial intervention by the filing of an RJ. Usually, within 45 days, you will receive notification from the court that you need to appear in front of a judge. From there, there will be financial disclosure of both parties so that you and court are fully familiar with the financial circumstances of the other. Other appointments maybe had such as experts to appraise real estate and attorneys for the children to represent the children. The process gets very complicated, so do not consider any of the above until you have consulted with an attorney of your choice.
If the parties cannot settle the case the court will eventually set the case down for trial and a judge will determine the issues at hand. Tthe above information is not legal advice nor is it intended to be. It is informational in nature and you should consult with an attorney of your choice as to the above information.
By: NYC Divorce Lawyer Lisa Beth OLder
September 30, 2019
A divorce means that you are ending a legal marriage by way of an official judgment promulgated by the court so designated in your State. There is no constitutional right to get a New York divorce, but all the states allow divorces to occur in order to serve the best interest of the public citizens seeking to resolve their issues.
Sometime people need a neutral forum to address their marital grievances and to air out their gripes. But others just want to end the marriage in an amicable fashion, in the form of an Agreement or Stipulation of Settlement which decides the outstanding custody issues, divides up the property and secures support for the appropriate party, if applicable. Either way, there are formalities which the parties must go through and a separation agreement is not the same as a judgment of divorce. But some States allow for conversion divorce where after a period the separation agreement can be acted upon to get divorced.
In some states there is something called a cool off period where people must wait a period before filing for a divorce judgment.
Here are two kinds of divorce in this country. One just dissolves the marriage and leaves the ancillary issues up to another state where the real property of the marriage, or res, is located. The other kind of divorce is the most common kind where the court decides all the ancillary issues of support, property distribution and child custody before it grants a divorce.
The Court will require that the parties submit documents to support grounds or reasons for divorce, and these grounds are different in each state.
A divorce changes the legal status of the parties from married to separate and single.
Most of the States now have no fault divorce as a ground for divorce which means that the parties no longer must plead fault to get a divorce filed.
New York allows parties to sue for divorce on fault grounds but also has a no-fault ground, where the party pleads that the marriage is irretrievably broken for over six months.
The most important part of any divorce proceeding is to determine which parent would be the custodial parent and which parent will have visitation. While the Courts favor joint custody, the courts will listen to the facts and decide based upon what is in the best interests of the child.
One of the most important aspects of a divorce is how to divide the property that was acquired by the parties during the marriage. In New York, this is called equitable distribution. The court will first characterize the property as marital verses separate. Next, the Court, after a trial and evidentiary hearing, will distribute the property between the spouses in accordance with the prevailing statute, rules of equity and case law. In New York Domestic Relations Law (DRL) governs divorce cases.
Lastly a trial court in a divorce action will decide whether and how much child support and spousal support will be paid.
By Lisa Beth Older, Esq.
Manhattan Divorce Lawyer
What happens if I can not afford a lawyer?
July 21, 2019
What happens if you cannot afford an attorney in your New York Divorce or Child Custody case?
The basis for a counsel fee award is predicated on the fact that the Law favors leveling the playing field so that one party does not benefit in the litigation by having more money to fight the case.
If you cannot afford an attorney and you are engaged in a divorce action, then you or your lawyer will have to make an application to the court for attorney’s fees. It is in the discretion of the court to award you fees, but the presumption is that you are entitled to counsel fees if you are the less moneyed spouse. The application must be a formal one and you must set forth the law that permits you to an award of counsel fees and the facts that support your application. Also, be sure to attach your sworn net worth statement and your tax return to the back of the application along with the anticipated amount of legal work that you believe your case will take, through to resolution or trial, together with an invoice, if any, of any legal work performed in advance of the application.
For interim motions if the attorney’s fees be granted, they are granted only temporarily. If the less moneyed party gets a hefty equitable distribution award the court may order reallocation of the funds paid out.
Counsel fees may also be applied for if there is a Court Order and your spouse is not abiding by the Order.
If you are in Family Court and you are the non-moneyed spouse or litigant for child custody you can ask the Court to appoint you someone from the 18B law guardian panel.
Your Manhattan Divorce Lawyer Lisa Beth Older!
DO I HAVE TO TURN OVER MY BUSINESS RECORDS IN A DIVORCE?
June 29, 2019
Do I have to turn over my business records?
In a divorce action the Courts no longer focus on fault. However, a great dal of time is spent on learning about the other party’s assets, particularly if the other party has hidden assets and earnings from the other spouse or if the marriage is a high net worth marriage involving complex business ventures.
A complex set of laws and regulations and court rules will dictate what documents must be turned over to the other side. At the outset you will have to exchange net worth statements listing your monthly expenses and income as well as your debts and liabilities. These statements must be sworn to under oath and from a good platform for the attorneys to double check to ensure that the numbers represent the true net worth of each party. After that, the parties exchange demands for documents in the form of a Notice of Discovery and Inspection, Interrogatories which are informational demand requesting that statements made about your financial situation be sworn by the party answering them, and depositions.
Typically, personal bank statements ranging back to at least three years or more are required to be turned over, but if the marriage is of longer duration then the divorce lawyer for your spouse might ask for additional years of documents. Credit card statements are also the subject of discovery as are personal tax returns, loan statements and pension or retirement account statements, and a wide array of other such documentation.
Discovery in a matrimonial case is exhaustive and entails a lot of paper gathering. It is also mandatory that you comply with the requests and if your spouse does not comply then the other attorney may render a deficiency notice as to the items that you failed to turn over. If you continue to resist the exchange of documents requested of you then the remedies are harsh, such as precluding you from presenting a financial case at trial. You may also be held in contempt if your behavior is contumacious and unrelenting,
Thys, it makes sense to start collecting the data needed before you file for divorce so you can give your attorney an idea as to what is at stake.
Where discovery in a New York divorce becomes complex is where one or the other party owns a business with partners or investors that expect confidentiality of their records or where one of the spouses is running a real estate venture with other parties or corporations. Sometimes a spouse will try to hide behind a corporate veil and not disclose business tax returns and business banking accounts because they are privileged under the Federal Privacy laws of New York. However, if the spouse is the sole shareholder of the corporation the Courts will pierce the corporate veil and make your spouse turn over all these records.
If a spouse is working in the other spouse’s business or if the spouse is at home making indirect contributions such as raising the children, holding corporate parties, or entertaining perspective investors or buyers, then the spouse typically would have an interest in the business but the interest in the business is fractional and depends on how much you contributed to the business.
You can expect that if a business was started during the marriage or increased significantly during the marriage that the Court will appoint an independent evaluator to review the records, he or she needs to decide as to the value of the business. It would then be up to the court to apply the law to arrive at your fractional interest in the business, if any.
By Lisa Beth Older
Your New York City Divorce LawyerPracticing in Manhattan
WHY CAN'T I GET AN UNCONTESTED DIVORCE?
April 29, 2019
People often ask me whether they can get an uncontested divorce. That is a very complex question because while both parties may want to get a divorce, they do not realize that securing a divorce means that you must have both parties settle all ancillary issues in your divorce judgment. The grounds for divorce are probably the easiest part to consent to but is not the last part. There are many aspects to a marriage that must be resolved before a court can issue a judgment of divorce. If you have children, you must consent to all terms of legal custody and joint custody and custodial taxes to the children. This can become very complex when parties live in two different states are two different countries. It is just as complex if parties live in the same neighborhood because you must come up with a detailed schedule as to which parable have custodial axes on what days and on what holidays. As for child support, where there are children you must provide for a child support order in your divorce Judgment. That is also complicated because there is a uniform child support standard act guideline that you must follow unless there are reasons to deviate therefrom. And there are a lot of variables to consider before setting child support such as the income of the respective parties, the needs of the children and the ability to pay. And then there is spousal support. In New York since 2016, we now have a standard spousal support guideline that the courts often follow, and it sets a chart for the parties to understand whether they need to pay spousal support and how much and for how long. There are also issues involving property that is acquired during the marriage. This becomes difficult if one party or the other owns property prior to the marriage but contributes to the down payment on principal during the marriage. Furthermore, several of my clients don’t understand that pension rights and for one K plans are marital property if a portion of that plan is earned or accrued during the marriage.
These are only a few of the problems that must be addressed in detail in a signed agreement and knowledge to be for notary in a formal manner which is required for the filing of a deed. Indeed, even if the parties have managed to come to terms, the execution of the agreement is also a complex and should involve a lawyer reviewing your agreement to make sure it is binding.
There’s also the issue of counsel. Often if there is an attorney on the other side of the case there will always be issues to resolve because the parties may not have discussed points of law that must be in the agreement.
I am often heard to say that if there is an attorney on the other side it is not an uncontested divorce. That is only partially true! If the Attorney on the other side is reasonable and experienced and not out to change the deal of the parties, then you can have an uncontested divorce. But in my experience if there’s an attorney on one side of the case there will always be additional work other than filing closing documents and getting an uncontested divorce.
Without solving the above problems in a formal document, a court cannot get you a judgment of divorce. In fact, it would be error to do so.
As you can see an uncontested divorce is not as easy as you might think. That is why it is important to retain an experienced New York Divorce Lawyer familiar with divorce and child custody matters.
By Lisa Beth Older
Your Manhattan Divorce Lawyer
Can I sue for Adultery?
March 21, 2019
As a New York Divorce Lawyer, my clients ask me oftentime whether aultery is still a crime in New York State and whether they can sue their spouse for cheating on them. This article is designed to lend clarity to this issue because spouses that are hurt by a cheating spouse need answers to this. Penal law section 255.17 states that you can be found guilty of adultery if you or your spouse has sexual intercourse with another person during that time that you are married. However, you cannot actually depend on the State to prosecute anyone for adultery because the state of New York usually does not act against the perpetrator. There have been only approximatley 13 convictions for adultery over the last forty odd years and these convictions were attendant to and related to other more serious underlying crimes. This is because New York chooses not to prosecute adultery as a crime as a matter of public policy.
As for divorce in New York we have several grounds upon which to seek a divorce and again, one such ground is adultery. So, you can still sue for adultery but that does not always mean you will prevail because there are higher standards of proof that must be met for divorce courts you get you relief under those grounds. Also, while you can sue for adultery, since New York State has added irretrievable breakdown of the marriage as a ground for divorce the courts favor this as ground and you will be encouraged to proceed forward on this ground because it alleviates the court from having to have a trial on grounds. This is encouraged because, quite frankly, grounds no longer impact decisions on equitable distribution and support and child custody unless the factual basis of said act is so severe and egregious that it warrants special equitable relief.
For instance, for adultery to form a basis for any part of an equitable distribution award, you will have to prove in court that the adultery directly impacted that economic issue. An example of this might be that the cheating spouse may have spent some or all the marital assets on his or her paramour. In that instance a court will make an allowance for that amount and in its discretion try to reward the aggrieved spouse that amount which was spent on the extramarital affair. Another example as to how adultery might affect a divorce is has to do with custody. If the adultery was committed in a careless manner in front of the children or in an explicit manner and as such had an upsetting direct impact on the children, then a court might consider that as one of a myriad of factors in its determination as to what custodial arrangement would be necessary in the best interests of the children. Usually, however, a mere affair will not alter the way a court arrives at a custodial award.
Accordingly, if you are staying married because your spouse threatens that you will be punished for your adulterous act it is probably not a good reason. Most New York Courts do not concern themselves with grounds when making rulings for support, custody and distribution of property and it will probably have no impact on the result of your New York Divorce and your New York Divorce Lawyer will likely so advise. If after reading this article you are still convinced that you want to sue for divorce on the ground of adultery, then you must realize that you have a higher standard of proof. You can not just take the stand and tell the Judge you believe your husband or wife had an affair. Rather, in providing adultery you must have a witness other than yourself testify in a compelling manner that your spouse had sexual relations with a person outside the marriage and usually that person will be an investigator with corroborative media evidence such as a video or photographs of the spouse during the act. There are also defenses that your spouse can raise against an adultery allegation such as the fact that you might have agreed to an open marriage where both spouses agreed to extramarital affairs, you might have forgiven your spouse, or you might have cheated on your spouse as a form of revenge.
So, while New York Courts will still hear your case on the grounds of adultery, it is a cumbersome and costly process that involves airing your dirty laundry in a court of law and is unnecessarily expensive.
To conclude if you are looking to file for a New York divorce then the best grounds to precede on would be a no-fault divorce, or irretrievable breakdown of the marriage. Using this ground no proof is required to be had, and the plaintiff merely alleges and states that the marriage has broken down for a period of in excess of six months.