Infedility seems to be rampant these days, serving the basis for at least half of the divorces I handle here in New York.  The most recent highly publicized example is the Elliot Spitzer scandal, his trysts are adulterous affairs.  Being unfaithful to a spouse is becoming much easier mainly depletion of social mores and technology.  The internet, particularly, makes cheating on a loved one very attractive with the plethora of websites, chat rooms, etc.  To some people, cheating is the mere fact of having an online emotional bond with another person, while to others visiting porn sites is crossing the line.  Either way, to most of us having a sexual tryst with another certainly meets the test, qualifying as a breach of trust.

         Although adultery is one of the legal grounds for divorce in New York, it is definitely not commonly used.  Not even in the most egregious cases do attorneys use adultery as a grounds, mainly because of the difficulty of proving it in court.  Adultery is defined as “the commission of an act of sexual or deviate sexual intercourse, voluntarily performed by the defendant, with a person other than the plaintiff after the marriage of the plaintiff and the defendant”.  (DRL 170)  Although this may sound quite simplistic, proving it in court is not.  The plaintiff has the burden of proving that the “material” allegations in the complaint are true.  This means that the facts must be “corroborated” or proven by someone other than the betrayed spouse, his/her testimony is not permitted.  Nor can the defendant spouse “consent” to the grounds of adultery, not even by not appearing in the action or not denying the allegations in the “answer” to the divorce complaint.  The plaintiff spouse still needs to prove his/her case regardless of defendant’s spouse admission or acquiescence to the allegations of adultery.  And since affairs are not often public obtaining direct evidence to prove it is very rare.  Circumstantial evidence is commonly the means to prove adultery, but even in these instances the plaintiff spouse must still show opportunity, intent and inclination.  So, for instance, a private investigator, the lover, etc. testifying to the adultery is usually not enough.

          Further, there are “affirmative defenses” to adultery, which means that the defendant spouse must present a case, as a defense, to defeat the claim of adultery.  Affirmative defenses must be raised in the defendant spouse’s answering papers.  These defenses are:
                  • The betrayed spouse caused or consented to the adultery
                  • The betrayed spouse has forgiven for the adultery
                  • More than 5 years has passed since the discovery of the adultery
                  • The betrayed spouse has also committed adultery
          An alternative, the grounds for divorce is cruel and inhuman treatment is much more successful.  Cruel and inhuman treatment requires a showing of emotional abuse which psychologically, emotionally or physically affects the betrayed spouse.  In that respect, a cheating spouse flaunting the affair or admitting to it is a clear example of emotional abuse.  All cruel and inhuman requires is that the plaintiff spouse shows that on at least three occasions within five years of the petition filing, the defendant spouse behaved in a manner that was humiliating and/or embarassing to the other spouse causing emotional or psychological pain.

          So if Silda Spitzer decided to sue for divorce on the grounds of adultery, she may very well have a chance.  She does not need the prostitute, she can merely rely on the information the public was provided.

          Please feel free to contact my office to discuss your divorce or family law case.