When Divorce Denied, Although Adultery Proved

If you find that you no longer wish to remain married, you must follow the proper procedure to legally dissolve your marriage, including filing the appropriate paperwork. In the paperwork, you must indicate the reason you want a divorce. This referred to as your “grounds” for divorce. In other words, you must have a reason for getting a divorce. According to NY Dom Rel Law § 170(4), one legal reason for getting a divorce is adultery. Adultery is defined as voluntarily having sex with someone other than your spouse. “Sex” includes sexual intercourse, oral sexual conduct, or anal sexual conduct. However, according to NY Dom Rel Law § 171, even if you assert that adultery is the reason you want a divorce, your divorce may still be denied under certain circumstances. Divorce is a difficult life decision, and the process can be complicated. If you have decided to end your marriage, immediately contact an experienced New York divorce lawyer at the Law Offices of Stephen Bilkis & Associates. We have the knowledge and resources to handle your divorce with skill and sensitivity.

According to NY Dom Rel Law § 170, there are 7 grounds for divorce, including adultery. Whether your reason for filing for divorce is adultery or any other reason, you must support it with details and evidence, and your spouse has the right respond to your allegations of adultery. The court will deny your petition for divorce based on adultery if:

• You were involved in the adultery by planning or arranging for the liaison.
• You forgave the adultery. Evidence of forgiveness is cohabitating with your spouse after you have learned of the adultery.
• The adultery occurred more than 5 years prior to when the adultery-based divorce action was filed.
• You also committed adultery.

Keep in mind that even if you would not be entitled to a divorce based on adultery, you can file a “no fault” divorce based an “irretrievable breakdown in the relationship” as described in NY Dom. Rel. Law §170 (7).

There are some marriages that are either void or voidable. If a marriage is void, it is illegal and not valid. No legal action is necessary to dissolve the marriage. Examples of void marriages include incestuous marriages, bigamous marriages, and marriages that were not properly solemnized. Voidable marriages, while legal, can be annulled and declared void by a judge. Voidable marriages include marriages where one or both of the parties is under the age of 18, is mentally ill, is mentally incapacitated, suffers an intellectual disability, or where there was fraud.

If a marriage is void, then adultery is impossible because there was not legal marriage. If a marriage is voidable and there was adultery, upon petition the court may declare the marriage void and no action for divorce based on adultery or any other grounds would be necessary to dissolve the marriage.

1. Action for divorce: New York Domestic Relations Law, section 170
2. Special action: New York Domestic Relations Law, section 170-a
3. Co-respondent as party: New York Domestic Relations Law, section 172
4. Jury trial: New York Domestic Relations Law, section 173

In either of the following cases, the plaintiff is not entitled to a divorce, although the adultery is established:

1.  Where the offense was committed by the procurement or with the connivance of the plaintiff.
2.  Where the offense charged has been forgiven by the plaintiff. The forgiveness may be proven, either affirmatively, or by the voluntary cohabitation of the parties with the knowledge of the fact.
3.  Where there has been no express forgiveness, and no voluntary cohabitation of the parties, but the action was not commenced within five years after the discovery by
4.  Where the plaintiff has also been guilty of adultery under such circumstances that the defendant would have been entitled, if innocent, to a divorce.

Divorce is never an easy decision to make, and the process involves complicated emotional issues related to asset division, spousal maintenance, child custody, and child support. The experienced New York divorce lawyers at the Law Offices of Stephen Bilkis & Associates have the skill and knowledge to protect your interests and help you obtain the outcome you desire. Contact us at 800.696.9529 to schedule a free, no obligation consultation regarding your case. We represent clients in the following locations: Nassau County, Queens, Bronx, Brooklyn, Long Island, Manhattan, Suffolk County, Staten Island, and Westchester County.