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How an extramarital affair could impact your New York divorce

There are a number of common reasons why couples seek divorce. Disagreements about parenting styles, growing apart over time, abuse or even money issues could lead to the end of a marriage. Another very common reason for divorce is cheating.

When one spouse has an extramarital affair, it tends to destroy the trust and respect that serve as the foundation for a healthy marital relationship. Even if you try to go to therapy and work through the issues, an affair may mean you're headed to court.

If your spouse cheated on you, you may be wondering how that could impact your divorce. Will the courts award you any kind of putative damages for the infidelity? Will the affair impact child custody or the asset division process? The truth is that it will depend on a number of factors, including whether you have a prenuptial or post-nuptial agreement with a clause that addresses infidelity.

Cheating allows for a fault-based divorce

In New York, you can either file a no-fault divorce or a fault divorce. A no-fault divorce consists of spouses who agree that the marriage is broken beyond repair and has been for at least half a year. In fault-based divorces, one partner can file without the consent of the other so long as there is evidence of cruel and inhumane treatment, abandonment or adultery.

If you have proof of the affair, such as pictures, texts or even documentation from a private investigator, that can help you obtain a fault-based divorce. In most cases, unless your cheating spouse absolutely refuses to accept a divorce, no-fault divorces are simpler and less contentious. However, if you can't get your spouse to accept a divorce after an affair, you may need to seek a fault-based divorce.

Ways an affair could impact your divorce

When it comes to asset division and spousal support, the courts try to ensure that division of assets is fair to both parties. That means they will look at income, potential for income, medical needs, custody arrangements and the standard of living during the marriage, among other factors. Infidelity usually does not factor into how assets get divided or whether or not a spouse receives support.

The exception to this rule is when the cheating spouse was wasting marital property, such as money, while carrying on the affair. The same could be true about debt via credit cards, car loans and other forms of borrowing to support the affair. If your spouse was buying fancy meals, staying in hotels or paying bills for his or her lover, the amount that was wasted on the affair could end up diminishing the amount he or she receives from the asset division process.

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