In general, you will not necessarily get more assets out of
the divorce just because your spouse cheated.
In New York, property is divided based on “Equitable Distribution” Law
and not based upon the fault of one of the parties. First, it is determined whether property is
separate or marital. Then, once the
marital property is identified, the Court will use “Equitable Distribution” to
divide it.
Separate Property
All property will be looked at to figure out if it is
separate or marital. Separate property
in a divorce is property a spouse owned before the marriage, inheritances, personal
injury awards or gifts from someone else during the marriage. Separate property stays separate as long as it
is not mixed with martial property.
Marital Property
Marital property in a divorce is all property either spouse
bought during the marriage. Regardless
of who is named as owner, if the property was acquired after you were married,
then it is marital.
Equitable
Distribution
New York is an equitable
distribution state. What that
means is that in a divorce, the property that is marital will be split based
according to what is fair. What is fair
does not always mean equal or 50/50. When
determining fairness, the court considers the couple’s income, their living
situations before and after the divorce, who will have custody of the children,
and wasteful dissipation of assets, among other things.
Wasteful Dissipation
of Assets
If the Court feels that your spouse used marital money in a
wrongful way and you incurred a loss because of it, then the Court might give
you more in the divorce. What is
“Wasteful Dissipation” is determined on a case by case basis, but sometimes has
included gambling, alcohol or drug use, poor business decisions, and spending
money on a girlfriend/boyfriend.
If your spouse’s cheating does not amount to wasteful
dissipation of marital assets, then the Court will determine what assets are
separate and marital and divide everything based on what it feels is equitable
or fair. You will not automatically get
more because your spouse cheated, but it may be considered.
