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Is Adultery Still Relevant in New York Matrimonial Actions?

Posted by David A. Arpino | Dec 15, 2020 | 0 Comments

In New York, the Domestic Relations Law sets forth multiple grounds for divorce in New York. The "traditional" grounds for divorce, including adultery, have been rendered nearly extinct because of New York's passage of equitable distribution and the "No-Fault" divorce that was added in 2010.

Even with the passage of the "No-Fault" divorce law, there are circumstances where allegations of adultery still have great significance in matrimonial actions. Last week, the Appellate Division, Second Department was able to weigh in on such a case.

In an opinion, Justice Dillion, stated the the case provided the Court an opportunity examine, and "sharpen for the matrimonial bar" the evidence that a party must present to establish a cause of action alleging adultery. 

Justice Dillion's Legal Analysis

Justice Dillion starts by recognizing that allegations of adultery come with unique evidence issues. The conduct, for the most part, is often clandestine and out of public view. And proving it usually will depend on circumstantial evidence, rather than direct proof.

That's why since at least 1877, the appellate courts in New York have held that adultery may be proved circumstantially by showing a (1) lascivious desire, and (2) the opportunity to gratify the desire, and (3) acting upon the desire. 

The court went on to highlight there is almost no law addressing summary judgment motions to establish, or dismiss, claims of adultery. This is for three main reasons. First, until 1979, parties in a matrimonial action were prohibited from moving for summary judgment. "Reverse summary judgment" was also not allowed, that procedure being where a party would simply admit all the allegations in a complaint or counterclaim and move for a judgment on the pleadings.

Another reason why there is so little case law is the equitable distribution law itself. Marital fault is not among any of the factors to be considered for equitable distribution, and absent very rare circumstances, the reason for the dissolution of the marriage does not impact how marital assets are going to be distributed. The parties to a matrimonial action pay little attention to fault, but rather care more about matters of equitable distribution, parental access to children, child support and add-on expenses, and spousal maintenance. 

Finally, the passage of New York's "No-Fault" divorce law in 2010 has had the practical effect of displacing the other grounds that may have been asserted and litigated in matrimonial actions. By extension, these reasons have resulted on fewer and fewer decisional authorities on grounds, including adultery. 

"Proximity Plus Standard"

As stated earlier, the three-part test for circumstantially prove adultery is desire, opportunity, and intent. But Justice Dillion notes that those elements date back to a time when women were not routinely in workplaces as they are now. Society was also less mobile, with cars and airplanes used far less than they are today. He further notes that men and women work in the same locations, attend meetings, share lunches, exercise at gyms, and travel together for business.

As a result, the "opportunity" for infidelity can't simply be "proximity" but instead it must be "proximity plus." The "plus" also need not be irrefutable evidence, all it needs to be are facts from which reasonable inferences may be draw, that goes beyond the mere proximity of the two people themselves. The Court gives examples like: hotel receipts, plane tickets to destinations deviating from the norm, suspicious emails or other writings (text messages or social media messages), or suspicious conversations overheard by a witness.

Why did this Matter?

You might be asking yourself, if New York is a "No-Fault" divorce state, then why was this even litigated at the Appellate Division? Well the details matter. Apparently, the parties executed a prenuptial agreement where the husband agreed that if he engaged in infidelity, the wife would receive up to 80% of his future gross lifetime earnings from all sources, and 80% of all marital assets. As a result, the viability or non-viability of the adultery counterclaim had obvious financial ramifications to the outcome of the divorce action. 

About the Author

David A. Arpino

The Firm's Director of Marketing, Business Development, & Legal Operations.


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Arnold A. Arpino & Associates, P.C., is a full service law firm that represents individuals and businesses in a variety of different practice areas. Our firm regularly appears in the Courts throughout Long Island, New York City, and the Hudson Valley.