New York Divorce Lawyers Explain Family and Matrimonial Law

Adultery Myths And New York Divorce Law

In order to get a divorce in New York, you must prove marital fault. New York recognizes adultery as one ground to obtain a divorce. However, adultery, as a basis for divorce in New York is misunderstood. In this post, I will try to dispel some of the myths surrounding adultery.

Not a week goes by without someone asking me one of the following questions: (1) If my spouse cheated on me, do I get the house? (2) If my spouse cheated on me, do I get the kids? (3) I don’t have to pay maintenance if my spouse cheated on me, right? and (4) If my spouse cheated on me, can I have him/her arrested?

The law regarding adultery has changed with the times. A hundred years ago, the answer to the above questions would have been an unqualified “YES”. But, divorce laws in New York have changed to reflected the looser morality we inherited from the 1960s.

While we use the term “marital fault” in New York law, it has a very narrow application. It only refers to whether you can get a divorce, not what happens in the divorce. Getting a divorce is easy, the court dissolves the marriage. The hard part is resolving the issues of property and children. These issues are generally unaffected by allegations or proof of adultery.

Let’s first look at property. Under the equitable distribution law, the court is not interested in who destroyed the marriage. The court instead is looking at the length of the marriage, and the property acquired during the marriage. Generally speaking, the court will divide the property in half, regardless of who was at fault. Adultery, by itself will not adjust the scale.

But, what if the cheating spouse spent money on the paramour? That is different. Assume the cheating spouse bought the paramour jewelry. The money used was presumably marital money. That money was wasted and must be returned to the marital pot for distribution. In one case I had, the husband broke an investment plan and deposited it in the girlfriend’s bank account. The judge attached the account and brought the money back.

Child custody and visitation are more problematic because of the emotions involved. The paramour is seen as the cause of the termination of the marriage. So, it is not uncommon to for the innocent spouse to demand custody on a “morals” issue. Or the innocent spouse will demand that the children not be exposed to the evil paramour.

Until the sexual revolution of the 1960s, adultery was evidence of poor morals, and could be used to secure child custody. Now, that is simply not the case. Adultery is no longer the controlling factor in custody. Adultery can come into play if the paramour is an “inappropriate” person, such as a convicted felon or a sex offender. Adultery can also come into play if it is part of a pattern of an unstable lifestyle. For example, going out every night, leaving the children unattended, and then coming home in the early hours, coupled with adultery could be used as evidence of an unstable lifestyle.

The area of greatest conflict involves the presence of the paramour around the children. If the custodial parent is the cheater, the innocent spouse generally cannot understand why he/she can co-habitat around the children. The argument is that the environment is “morally unsafe.” “How can I teach my child what is right, when he sees a negative moral example everyday?” As I stated above, the courts don’t get into assessing morality. If the child has a separate bedroom, many judges will not issue any order prohibiting the paramour from being in the presence of the children.

However, I have had some circumstances where the court has ordered that visitation shall not occur in the presence of the paramour. Generally, this occurs in particularly nasty breakups, and the law guardian and/or the forensic psychologist believe that it is not in the interests of the children to be in the presence of the paramour. There is no hard and fast rule, but will depend on a case by case basis.

Maintenance is generally unaffected by adultery. This may seem like a harsh rule. “She/he cheats on me and I have to pay?” The problem comes from the statutory basis for maintenance. The purpose is to rehabilitate the non-working or underworking spouse into the work force. The societal goal is to create a self-sufficient person who will not be a public charge. So, the issue of adultery generally does not play into an award of maintenance.

Finally, no one goes to jail for adultery anymore. Only the military prosecutes for adultery.

Not your Mother’s SBP

I’ve never been a big fan of the Suvivor’s Benefit Plan (SBP). As you may know, military retired pay ends on the dead of the retiree. Unlike a 401K or IRA, there is no bank account with money in it. Once the retiree dies, the payments from DFAS cease. The spouse or former spouse, gets nothing on the retiree’s death, unless there is SBP.

The SBP is a program created by Congress to provide an annuity for the surviving spouse (and/or children). The program also provides automatic coverage for any servicemember who dies in the line of duty. It is available to all members of the military to include the Coast Guard, the National Health Service and the National Oceanic and Atmospheric Administration. And yes, it covers us second class citizens in the Reserves.

Under the Former Spouses Protection Act, the coverage is automatic. In other words, the spouse has to actively refuse coverage. This provision was placed in the law to protect a spouse who after twenty years of marriage gets dumped by the servicemember upon retirement. A servicemember can opt out. But, the spouse must sign a waiver. This election must be made prior to the first day the member become eligible to receive the retired pay.

A reservist must make an election within 90 days of receiving the 20 year letter: (1) decline to make an election until age 60; (2) elect coverage to begin on the servicemember’s death or upon the date the servicemember would have been eligible to receive the retired pay, whichever is later; or (3) elect coverage to commence upon the servicemember’s death, regardless of the member’s age when death occurs. However, if the election is not made, then the servicemember is automatically enrolled in (3). A reserve servicemember who elects to forgo the SBP in the 90 day period can change his/her mind when he/she is eligible to receive retired pay.

A former spouse can receive SBP. A judge in a divorce can award SBP. The election to the former spouse must be made within one year of the judgment of divorce. Only one spouse or ex-spouse can receive SBP. This is no splitting or allocating. If ex-spouse is getting the SBP, the new spouse is locked out.

SBP used to have a “social security” offset. A spouse would receive 55% of the retiree’s pay until the spouse turned 62. Then the SBP payments would be reduced to 35% of the retired pay. In 2007, the rule changed, as of April 1, 2008 all spouses will received 55% regardless of their age. The social security offset is now gone. From April 1, 2007 to March 31, 2008, spouses over the age of 62 got 50% of the pay. On April 1, 2008, that went up to 55%.

This new law goes a long way to fixing some of the problems inherent with the program.