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. 

Why Should I Use a Mediator to Get Divorced?

For the right couple, there can be many benefits to using a mediator to get a divorce.  Mediation can be a less expensive and less stressful process than going to court.  In order to understand the benefit of using a mediator, it is first important to understand their role and how the process of mediation works.  

The Mediator’s Role

The role of a mediator is to help couples negotiate a fair agreement.  The mediator will sit with you both and listen to both of your concerns.  A good mediator will not act as the judge, but rather will inform you of possible solutions to your concerns and provide guidance.  An experienced mediator will make sure that everything is discussed and resolved.      

How it Works 

The three of you together will review your bank statements, pension statements, tax returns, and other important financial documents so that you both understand what accounts you have.  The mediator will also go over your concerns about your children.  For instance, you will discuss where the children will spend the holidays and who will pay for their activities and medical expenses.  If you own a home, you will figure out a plan for keeping it or selling it.  

Why it is Beneficial

When a person participates in making their own agreement, they are more likely to abide by it.  You have control over how quickly the process happens and have more say in the outcome without going to court.  By using a mediator, your agreement will include your specific concerns and you will have used the less costly and less stressful way to get there.

NY's New Spousal Support & Maintenance Law

The new law regarding spousal support and maintenance in New York goes into effect at the end of January 2016.  Two big changes to the law are as follows:

One major change is that the law provides a guideline for the duration of maintenance.  Since the duration is a guideline, divorcing spouses still have negotiating power in determining how long maintenance should last.  In determining duration, couples should consider things such as whether there are young children in the home, if a spouse must return to school, and how long it could take for the person receiving maintenance to become self-sustaining.

Another change to the law is that there are two different calculations, one for where a non-custodial parent is paying child support and another for where there are no children or the custodial parent is the one responsible for paying spousal maintenance.  The change now factors in the cost of child support being paid so that there is no "double-dipping."  

These two changes to the maintenance law, among others, were meant to provide a better formula for calculating support and help couples, attorneys and mediators in negotiating fair and effective divorce settlements.

The bill summary can be found at:
http://www.assembly.state.ny.us/leg/?default_fld=&bn=A07645&term=2015&Summary=Y&Memo=Y&Text=Y