Adultery and Equitable Distribution

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 whether an adulterous spouse will lose his/hers rights in equitable distribution. People believe that cheating spouse (husband or wife) should pay for this misdeed. Sadly, adultery during marriage is a not uncommon.

The first thing to keep is mind is that civil law, and divorce comes under civil 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.

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 adultery 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.

There are, of course, exceptions. For example, if the adulterous spouse diverted marital funds or assets to the 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.