New York is now a “no-fault” divorce State. This means, that you do not have to demonstrate fault in order to get divorced. This also means, that in a divorce, the Court is not concerned with why you are getting divorced, they are only concerned with the issues of the divorce (e.g., child custody, child support, spousal maintenance, distribution of assets, etc.).
However, some clients want the Court to find that their spouse committed adultery and want to punish their spouse for their actions. Although you can still add adultery as one of the reasons why you want to get divorced (called a “cause of action”), virtually every Judge will want to handle the divorce without deciding adultery. It is extremely difficult to prove your spouse committed adultery. Adding adultery as a cause of action will increase the time to get divorced and also add the amount of money you need to spend to get divorced. Accordingly, it is extremely rare to add adultery as one of the reasons why you are seeking a divorce.
Yet, despite the fact that the divorce court will not consider adultery as one of the reasons why you are getting a divorce, adultery is still a crime in New York State. Adultery is classified as a Class B misdemeanor. This means that technically you could go to jail for up to 90 days and pay a fine.
However, it is extremely rare for anyone to be arrested just for adultery. Indeed, since 1972, only 13 persons have been charged with adultery. Of those 13 persons, only five actually were convicted of the crime. In virtually every one of those cases, there was some other crime that was committed and the prosecuting attorney added adultery as just one of many crimes committed.
Therefore, although adultery is still technically a crime, there is extremely little chance that you will be prosecuted for the crime. Furthermore, in a divorce, whether or not you or your spouse committed adultery will not be the basis of your divorce.
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