Tuesday, August 15, 2017

My Spouse Cheated, Do I Get More in the Divorce?

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. 


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