Under The New York Law, Adultery by A Spouse Will Not Effect Equitable Distribution
No, you don’t get the house if s/he cheated on you.
One of the most frequent questions I get asked is: “If my spouse cheated on me, do I get the house?” To put this question in proper legalese, the question is “if my spouse committed adultery will it effect equitable distribution.” People believe that cheating spouse (husband or wife) should pay for this misdeed. Sadly, cheating during marriage is a not uncommon. Just as sadly, the New York Divorce Courts are not really interested in the whys of a failed marriage.
The New York Divorce Courts Do Not Punish A Cheating Spouse by Altering Equitable Distribution
The first thing to keep is mind is divorce law, as opposed to criminal law, is not concerned with punishment. The court is seeking to get an equitable resolution and not punishing someone for a moral lapse. While adultery is considered a moral lapse by many religions, it is not punished in divorce.
Under New York divorce law, the courts draw a line between determining the grounds or reason for the divorce, and the division of property.
While infidelity is emotionally harmful to the marriage, and can have an adverse impact on the children, the courts will generally not consider it as a factor in division of the marital property. Cheating, by itself will not result in you “getting the house.” Equitable distribution is not effect by cheating. The New York Divorce Courts do not take any moral position about adultery. The court is only interested in a fair distribution of property.
While the cheated on spouse may feel it is fair to get more property, the courts did not agree. The New York Divorce Courts view marriage as an economic partnership. Each party puts an economic value into the marriage. It is this economic value that the court divides with equitable distribution. Emotional hurt, such as that caused by adultery is not considered as a factor by the courts.
But, Sometimes Adultery Can Effect Equitable Distribution by The Courts
I know it sounds like I’m contradicting myself. On one hand I just explained how adultery does not effect equitable distribution. But, I am not. I said, adultery, by itself will not effect equitable distribution.
Now, lets look at other facts of adultery which could effect equitable distribution. For example, if the cheating spouse diverted marital funds or assets to the girlfriend /boyfriend. (We divorce lawyers use the term “paramour”). The typical examples are the purchase of an apartment or of jewelry. This conduct is called “dissipation of marital assets.” Under those condition, a judge can, under New York divorce law, recover the money that the cheating spouse spend on his/her boyfriend or girlfriend. But, remember, the court is not going to give the non-cheating spouse the house as punishment. So, infidelity is not punished, but is a factor when showing that assets have been wrongfully taken from the marriage.