Consequences of cheating?

“Married but feeling unfulfilled? Commit adultery! Find like-minded local partners”

This is the text of a sponsored ad that appeared after I did an Internet search on divorce. As I stared at the screen, I experienced a moment of disbelief. It wasn’t a long moment, but a brief moment in which I couldn’t believe what I was seeing. Then reality hit again and I realized that I shouldn’t be surprised by anything these days. That realization was disturbing.

Doesn’t the mere existence of an “adultery service,” let alone one so conspicuously publicized, imply that we as a society are taking the position of excusing spousal infidelity? Part of the answer to that question lies in examining the recourse (outside of the divorce itself) available to victims of adultery in New York.

Adultery is a violation of New York State Penal Law section 255.17, a class B misdemeanor. However, it would be hard to argue that this is a vigorously prosecuted crime: the number of prosecutions in New York is estimated to be York is 12 since 1970.

What about the terms of the divorce? Does our legal system provide at least a more favorable outcome for those whose marriages were destroyed by a cheating spouse?

There is an ongoing debate about the level to which the “bad behavior” of a divorcing spouse must rise before the court considers it when calculating alimony and equitable distribution. In certain cases, the court will essentially award more money to a divorcing spouse who has been abused by their partner. The reasoning behind this is that the spouse who has caused the breakdown of a marriage cannot benefit from her own wrongful conduct. The specific standard that applies is whether “the spousal misconduct is so egregious or uncivilized as to speak of flagrant disregard for the marital relationship; misconduct which ‘shocks the conscience’ of the court, thereby compelling it to invoke its equitable power to make justice between the parties.

So what does that mean exactly? Specific conduct that courts have deemed “egregious” for purposes of calculating support and equitable distribution as noted above included cases of rape, kidnapping, and severe and prolonged physical abuse (specifically citing, matters that had previously been litigated where husbands had beaten their wives with a bar and a piece of pipe, causing neurological damage, breaking their bones, and committing other horrific acts of violence against them).

Clearly. But what about adultery?

Whether firsthand or through friends and family, most of us are aware of the devastation often felt by victims of infidelity. We have witnessed the destruction of families and the lasting effects on the spouses and children of the unfaithful. Reasonable minds will probably agree that acts of “cheating” at the very least show contempt for the marital relationship. However, there is less than universal agreement that such behavior is “shocking.”

Ok, maybe in the case of a momentary error in judgment or an unfortunate mistake. But taken to extremes, acts of adultery can certainly reach that level, right?

Not necessarily.

In a recent decision in a New York divorce lawsuit, an appeals court held in part that an unfaithful wife’s attempts to cover up an extramarital affair by allowing her husband to believe for four years that he was the biological father of a child that she was in fact conceived during an ongoing adulterous relationship with another man, one of a series of affairs she had engaged in over the course of the marriage, did not constitute “actionable egregious conduct.” In English, the court essentially ruled that the wife’s conduct was not “bad enough” for her to hold against him with respect to the division of marital property, etc. In simpler English, “tough break but there’s nothing we can do to help you.”

This decision will be reviewed by the Court of Appeals, the supreme court of the state of New York. Ultimately, they will decide what the “consequences of cheating” will be in this context.