The New York Lawyer Blog

“Married But Feeling Unfulfilled?   Commit Adultery!             Find Local Like-Minded Partners”

This is the text of a sponsored ad that appeared after I ran an internet search regarding divorce.  As I stared at the screen, I experienced a moment of disbelief.  Not a long moment, but a brief instant where I could not believe what I was seeing.  Then reality came crashing back and I realized that I should not be surprised by anything these days.  That realization was troubling.

Doesn’t the mere existence of an “adultery service”, let alone one so conspicuously advertised, imply that we as a society are taking the position of excusing marital infidelity?  Part of the answer to that question lies in examining the recourse (outside of a divorce itself) available to victims of adultery in New York.

Adultery is a violation of NYS Penal Law section 255.17, a class B Misdemeanor.  However, one would be hard pressed to argue that this is an offense that is vigorously prosecuted – estimates have the number of prosecutions in New York at 12 since 1970.

What about the terms of the divorce?  Does our legal system at least provide a more favorable outcome to those whose marriages were destroyed by a cheating spouse?

There is an ongoing debate regarding the level to which the “bad behavior” of a divorcing spouse must rise before it will be considered by the court in calculating maintenance and equitable distribution.  In certain cases, the court will essentially grant more money to a divorcing spouse who has been subjected to abuse at the hands of their partner.  The reasoning behind this is that the spouse who has caused the breakup of a marriage cannot profit from his or her own wrongful conduct.  The specific standard applied is whether “the marital misconduct is so egregious or uncivilized as to bespeak of a blatant disregard of the marital relationship–misconduct that ’shocks the conscience’ of the court thereby compelling it to invoke its equitable power to do justice between the parties”.

So what exactly does that mean?  Specific conduct the courts have held to be “egregious”  for purposes of calculating maintenance and equitable distribution as referred to above, included instances of rape, kidnapping, and protracted and severe physical abuse (citing specifically, matters that had been previously litigated where husbands had beaten their wives with a barbell and a piece of pipe, caused neurological damage, broken bones, and committed other horrific acts of violence against them).

Clearly.  But, what about adultery?

Be it first hand or via friends and family most of us are aware of the devastation often felt by the victims of infidelity.  We’ve witnessed the destruction of families and the lasting effects on the spouses and children of the unfaithful.  Reasonable minds will probably agree that acts of “cheating”, at a minimum show disregard for the marital relationship.  However, there is less than universal agreement that such behavior is “shocking”.

Ok, perhaps in the case of a momentary lapse in judgment or an unfortunate mistake.  But taken to extremes, acts of adultery can certainly rise to that level, right? 

Not necessarily.

In a recent decision in a New York divorce action, an appellate court held in part that a cheating wife’s attempts to cover up an extramarital affair by allowing her husband to believe for four years that he was the biological father of a child who was in fact conceived during an ongoing adulterous relationship with another man – one of a series of affairs she had engaged in over the course of the marriage, did not constitute “actionable egregious conduct”.  In English, the court essentially ruled that the wife’s conduct was not “bad enough” for it to hold against her with respect to dividing up the marital assets, etc.  In simpler English, “tough break but there’s nothing we can do to help you”.

This decision will be reviewed by the Court of Appeals, the highest court in New York State.  They will ultimately decide what the “consequences of cheating” in this context will be.

What do you think?