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Can adultery become an issue if the divorce is overturned?

By Spodek Law Group | July 27, 2023
(Last Updated On: October 13, 2023)

Last Updated on: 13th October 2023, 08:21 pm

Can Adultery Become an Issue if a Divorce is Overturned?

Ending a marriage is never easy, especially when adultery is involved. If you live in New York and your divorce is overturned after being finalized, past adultery can potentially become an issue again depending on the circumstances. This article will examine how adultery factors into divorce in New York, whether it can be revisited if a divorce is overturned, and what that might mean for your case.

Adultery as Grounds for Divorce in New York

New York allows for both fault and no-fault divorce. No-fault divorce requires that you prove the marriage has irretrievably broken down for a period of at least six months. However, you can also file for divorce based on fault grounds like adultery.To prove adultery in New York, you need evidence that your spouse voluntarily engaged in sexual acts with someone else during your marriage. Your testimony alone is not enough – you need additional proof like records, texts, emails, receipts, or witness testimony. Even if you prove adultery occurred, there are defenses that could prevent you from being granted a divorce on those grounds:

  • Forgiveness – If you resumed marital relations after learning of the adultery
  • Condonation – If you approved of or encouraged the affair
  • Recrimination – If you also committed adultery
  • Connivance – If you facilitated or made it easy for your spouse to commit adultery

So while adultery can be used as grounds for divorce, it is difficult to prove and can be barred by certain defenses. It also leads to a longer, more contested, and more expensive divorce process.

Does Proving Adultery Impact Alimony or Property Division?

In New York, adultery does not automatically entitle you to a greater share of marital assets or increased alimony. However, the circumstances around the adultery can come into play. If your cheating spouse used joint funds to pay for gifts, trips, or expenses related to the affair, the court may consider that wasteful dissipation of marital assets. This could justify awarding you a larger portion of the marital property.

Adultery is also not one of the factors judges must consider when deciding spousal maintenance under New York law. But they can look at any other factors they believe would be fair. So outrageous conduct surrounding adultery could potentially impact alimony awards. Overall though, adultery alone does not typically affect financial outcomes unless connected to wasteful spending or truly egregious behavior. The act itself does not guarantee you a better settlement.

How Might Adultery Affect Child Custody?

When deciding child custody, the court’s main concern is the best interests of the child. An extramarital affair alone does not mean a parent cannot provide a loving, stable home. Unless the adultery exposed the children to harm or reflects seriously poor judgment, it should not impact custody or visitation rights.

However, there could be exceptions if the circumstances surrounding the adultery were truly contrary to the child’s well-being. For example, if the affair was abusive or caused neglect of the children. But generally, adultery does not play a major role in custody decisions.

Can Adultery Be Revisited if a Divorce is Overturned?

If your divorce is overturned or vacated after being finalized, it essentially means legally you were never divorced. So if adultery factored into your original divorce, it could potentially become relevant again.Whether past adultery gets brought back up depends on why the divorce was overturned and the next steps taken:

  • If the divorce was vacated due to fraud or procedural errors, adultery could be alleged again if using fault grounds in a new filing.
  • If the case is reopened to renegotiate financial issues like alimony or property division, past adultery could be revisited if it relates to wasteful spending of marital assets.
  • Custody and visitation could also be readdressed, but a parent’s adultery should not affect this unless exceptional circumstances were present.
  • Adultery could even be alleged against a spouse who remarried if the divorce is overturned, since they were still technically married under the law.

So in summary, if your divorce is undone, your spouse could potentially bring up past adultery again as grounds for a new divorce filing or if it relates to certain financial factors. However, it may not ultimately impact the outcome unless connected to wasteful spending or harm to children.

Working with an Experienced New York Divorce Attorney

If your divorce was overturned and you are worried about past adultery coming up again, it is important to work with an experienced local divorce attorney. They can advise whether your spouse can plausibly reopen adultery accusations and how that might impact your case.A knowledgeable lawyer can also help protect your rights and interests if your spouse does reallege adultery after the divorce is vacated. They will understand the nuances of New York divorce law and how to address adultery in the context of your specific circumstances. This can give you the best chance at a favorable outcome.Going through a divorce once is hard enough. Having to go through it again after your divorce is overturned can be even more difficult and emotionally taxing. But the right attorney can help guide you through the process and represent your best interests every step of the way.


Adultery can be a complicating factor in any divorce, especially if the divorce ends up overturned later on. While adultery alone does not guarantee better financial outcomes, it can become relevant again if a divorce is undone. The spouse alleging adultery may bring it up as grounds for a new filing or in relation to wasteful spending of marital assets.However, experienced local counsel can help protect your rights and limit the impact of adultery accusations if your divorce is vacated. With an attorney’s assistance, you can move forward and work to achieve the best possible resolution for you and your family.



 Does Adultery Affect Alimony in a New York Divorce?


 Adultery in New York: Is It a Crime?


 LEGALease: Divorce and Separation


 Adultery laws


 Will Infidelity Affect My Divorce Settlement?


 Does Adultery Matter in a Massachusetts Divorce?

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