Divorce can be a stressful, emotional time for couples. If the divorce was instigated due to infidelity, this is especially true.

If you are starting the divorce process and one or both of you were unfaithful in your marriage, you may be wondering what to expect compared to a divorce where adultery is not a factor. Will infidelity impact the proceedings and results?

Adultery as grounds for divorce

There are seven options couples can choose from when establishing the grounds for a divorce. They are:

  • Cruel and inhuman treatment
  • Abandonment
  • Confinement in prison for three or more consecutive years
  • Living separate and apart pursuant to a separation judgment or decree
  • Living separate and apart pursuant to a separation agreement
  • Irretrievable breakdown in the relationship for a period of at least six months
  • Adultery

While selecting adultery as grounds for a divorce may seem cut and dry, this is typically not the case. In New York, adultery must be proven to be accepted as a legal reason to divorce, and the spouse cannot provide the sole testimony against the other spouse. You could literally walk in on your spouse cheating on you and watch it happen with your own eyes, and it would not be enough to successfully choose adultery as the grounds for divorce.

To be granted a divorce due to adultery, a spouse must provide a witness who can confidently testify or provide evidence of infidelity. This could be another witness who saw the adultery or the person with whom your spouse was being unfaithful.

Contested divorce and infidelity

In New York, a contested divorce is when either spouse does not want to get a divorce, disagrees about the grounds or disagrees about what will happen with children, finances, property and more after the divorce.

Your spouse may contest the divorce if you were unfaithful and try to file for a reason other than adultery. They may become vindictive if they feel wronged due to infidelity, and may petition for sole custody of the children, a large portion of finances or to keep a larger percentage of the property because they feel it is owed to them.

On the other hand, your spouse may contest the divorce if they were unfaithful and don’t want the marriage to end, and you filed for divorce on grounds of adultery. They may try to make you prove it, which could prove difficult if you don’t already have sufficient evidence through a third party. They may also try to seize property or finances if they want to share those assets with a new partner.

There is no guarantee that a divorce in which infidelity is a factor will be contested. In many cases, both parties can come to a mutual decision that is best for themselves and for the family. However, there are cases where these divorces can get complicated quickly.

From the very beginning of the process, talking to a divorce attorney can help you prepare for potentially ugly behavior and mediate with your soon-to-be ex-spouse. They are able to be realistic about your options and help determine the best grounds for filing for divorce to meet the needs of both parties.