Adultery in New York is no longer a crime, but it still exists on the books as a fault ground for divorce. Governor Hochul signed the repeal of the criminal adultery statute in November 2024, so an affair carries no risk of arrest or jail.1New York State Senate. New York State Senate Bill S8744 In divorce court, its role is narrower than most people assume: New York judges focus on finances, not marital misconduct, and the no-fault option means you never have to prove an affair to end a marriage.
What Counts as Adultery Under the Statute
Domestic Relations Law Section 170(4) defines adultery as voluntary vaginal, oral, or anal sexual contact between a married person and someone other than their spouse, taking place after the marriage began.2New York State Senate. New York Domestic Relations Law 170 – Action for Divorce The definition was broadened in 2024 to cover oral and anal conduct alongside vaginal intercourse.
The line the statute draws is physical. Emotional affairs, sexting, flirtation, and romantic relationships that stop short of sexual contact do not qualify. If you plan to file on adultery grounds, suspicious behavior alone is not enough. You need evidence of the sexual act itself.
Adultery Is No Longer a Crime in New York
Until late 2024, adultery was a class B misdemeanor under Penal Law 255.17, technically punishable by up to 90 days in jail.3New York State Senate. New York Code Penal 255.17 – Adultery Prosecutions had been effectively nonexistent for decades. Senate Bill S8744 repealed the statute entirely, and the Governor signed it on November 22, 2024, with immediate effect.1New York State Senate. New York State Senate Bill S8744
The consequence for anyone reading this today: no arrest, no fine, no jail time, no criminal record. The only remaining legal forum where adultery matters is divorce court.
Filing on Adultery Grounds vs. No-Fault Divorce
New York offers both routes. Under the no-fault provision in Section 170, either spouse can file by stating under oath that the marriage has been irretrievably broken for at least six months.2New York State Senate. New York Domestic Relations Law 170 – Action for Divorce All financial and custody questions still have to be resolved before the judgment is entered, but neither spouse has to prove the other did anything wrong.
Adultery remains one of the fault grounds listed in the same section, and some spouses still file on it for personal or strategic reasons. The path is harder. The court requires clear and convincing evidence of the sexual contact, a tougher standard than the preponderance of the evidence used in most civil cases. Circumstantial signs like late nights out or affectionate texts are not enough on their own.
There is also a time limit. If more than five years have passed since you discovered the adultery, the court will deny a divorce on those grounds.4New York State Senate. New York Domestic Relations Law 171 – When Divorce Denied, Although Adultery Proved The clock runs from the date you learned about the affair, not the date it happened. For most people, the no-fault route is faster, cheaper, and less draining.
Proving Adultery in a Divorce Case
If you do pursue adultery as a ground, the burden of proof is entirely on you. The traditional framework asks for both opportunity (the spouse and the other person had the chance to be alone) and inclination (a romantic or sexual interest between them). Combined, these can build a circumstantial case strong enough to meet the clear and convincing standard.
Direct evidence carries more weight than circumstantial. Photographs, hotel records, financial transactions, and firsthand eyewitness testimony all help. Electronic evidence has become central in modern cases: text messages, emails, social media, and dating app profiles can be admitted if they were obtained legally and can be authenticated. Accessing your spouse’s phone or accounts without permission can make the evidence inadmissible and expose you to legal problems of your own.
Private investigators are common in these cases when direct evidence is hard to gather. They can document patterns, photograph meetings, and testify. That adds cost to a proceeding that is already expensive, which is one more reason many attorneys steer clients toward no-fault unless there is a specific strategic reason to prove the affair.
How Adultery Affects Property Division
New York is an equitable distribution state, which means marital property is divided fairly based on statutory factors rather than split down the middle. Adultery is not one of those factors. The 16 items listed in Domestic Relations Law Section 236(B)(5)(d) include each spouse’s income, the length of the marriage, future financial circumstances, and contributions as a homemaker or wage earner.5New York State Senate. New York Domestic Relations Law 236 – Special Controlling Provisions Marital fault is not on the list.
The factor that can matter is wasteful dissipation of assets, listed as factor 12. If your spouse spent significant marital money on the affair, whether on gifts, travel, or an apartment for the other person, a judge can account for that when dividing property. The affair itself is not what triggers the adjustment. The financial waste does. Bank statements, credit card records, and sometimes a forensic accountant become important here.
The statute includes a catch-all letting the court weigh “any other factor which the court shall expressly find to be just and proper.” A judge could in theory use it to consider egregious misconduct, but courts rarely do so for ordinary adultery. The direction of New York law is toward treating divorce as an economic dissolution rather than a moral judgment.
How Adultery Affects Spousal Maintenance
Spousal maintenance, what many people call alimony, follows a similar pattern. The court uses an income-based formula to set a guideline amount and can adjust it up or down based on factors including age and health, earning capacity, the standard of living during the marriage, and contributions as a spouse and parent.5New York State Senate. New York Domestic Relations Law 236 – Special Controlling Provisions
Adultery is not a named factor. Two related factors can matter. Wasteful dissipation is on the list, so an affair that drained household finances can be considered. Acts by one spouse that inhibited the other’s earning capacity or ability to find meaningful employment are also relevant, though the statute references domestic violence as the primary example. The same catch-all applies, but expecting a maintenance windfall because your spouse cheated is unrealistic.
Does Adultery Affect Custody
Custody decisions turn on the best interests of the child, and adultery is generally not part of that analysis. Courts look at stability, who has been the primary caretaker, each parent’s mental and physical health, substance use, domestic violence, and the child’s own preferences depending on age and maturity.
An affair would only affect custody if you could show it directly harmed the child. If a parent left young children unsupervised to meet the other person, or if the affair partner posed a safety risk, those facts could weigh in the outcome. The affair by itself does not make someone a worse parent in a judge’s eyes.
Defenses When Adultery Is Alleged
Domestic Relations Law Section 171 lists four situations where a court will deny a divorce even if adultery is proven.4New York State Senate. New York Domestic Relations Law 171 – When Divorce Denied, Although Adultery Proved Each applies when the accusing spouse’s own conduct undermines the fault claim.
- Connivance. The accusing spouse arranged for or actively consented to the affair. Passively failing to prevent one you suspected is not connivance; there must be active participation or encouragement.
- Condonation. The accusing spouse forgave the adultery and voluntarily resumed the marital relationship. Forgiveness can be shown directly or inferred from continued cohabitation and intimacy after the affair came to light. A new act of adultery after the forgiveness revives the original claim.
- Five-year time bar. The accusing spouse waited more than five years after discovering the adultery to file.
- Recrimination. The accusing spouse also committed adultery. If both were unfaithful, neither can use the other’s affair as grounds.
These defenses only block a fault-based divorce on adultery grounds. They do not stop the accusing spouse from filing under the no-fault provision, which requires no proof of wrongdoing by either side. In practice, the defenses tend to delay or complicate proceedings rather than preserve a marriage.
You Cannot Sue the Affair Partner in New York
New York bars lawsuits against the person your spouse had an affair with. Civil Rights Law Section 80-A abolishes causes of action for alienation of affection, criminal conversation, seduction, and breach of a promise to marry.6New York State Senate. New York Civil Rights Law 80-A – Causes of Action for Alienation of Affections The statute also says no act committed within New York can give rise to any of these claims in any jurisdiction.
A few other states still permit alienation of affection suits. New York does not. Your legal remedy for an affair is confined to the divorce case itself, and within that case, the affair’s financial impact on the marital estate is the piece a judge is most likely to address.