Does cheating affect alimony in New York?

In almost all cases, no. New York calculates spousal maintenance (alimony) under a statutory income-based formula in Domestic Relations Law § 236(B), and marital fault — including adultery — is not one of the factors courts consider. The New York Court of Appeals held in Howard S. v. Lillian S. (2010) that adultery alone does not rise to the level of "egregious conduct" that would justify altering the financial outcome of a divorce. The narrow exception is conduct so extreme that it shocks the conscience of the court — domestic violence, attempted murder of a spouse — which courts have treated as relevant to the financial award. An ordinary affair, however painful, does not change the maintenance calculation.

How is alimony calculated in New York in 2026?

New York uses a guideline formula under DRL § 236(B). Where the paying spouse is not also paying child support, the guideline amount is 30% of the payor's income minus 20% of the payee's income. Where the payor is also paying child support to the same recipient, the formula is the lesser of 20% of payor income minus 25% of payee income, or 40% of combined income minus the payee's income. The formula applies to the first $241,000 of the payor's income (the cap effective in 2026, adjusted every two years). Above the cap, the court has discretion to award additional maintenance based on the statutory factors. The duration is guided by an advisory schedule tied to the length of the marriage.

Is adultery still a ground for divorce in New York?

Yes, technically. Adultery remains a fault ground for divorce under DRL § 170(4). In practice, it is rarely used. Since 2010, New York has allowed no-fault divorce under DRL § 170(7) based on an irretrievable breakdown of the marriage for at least six months — which requires no proof of misconduct. Proving adultery, by contrast, is difficult: the spouse's own admission is not enough by itself, corroborating evidence is required, and defenses like condonation (forgiving the affair and continuing the marriage) can defeat the claim. Because proving fault yields essentially no financial advantage, almost all New York divorces — including those involving infidelity — proceed on no-fault grounds.

What is the "egregious conduct" exception?

New York courts may consider marital fault in the financial award only where the conduct is "so egregious or uncivilized as to bespeak of a blatant disregard of the marital relationship" — a standard drawn from Blickstein v. Blickstein and reaffirmed by the Court of Appeals in Howard S. v. Lillian S. (2010). Conduct that has met the standard in reported cases includes attempted murder of a spouse and severe domestic violence. Conduct that has not: adultery, even adultery with significant emotional consequences. The exception exists for extreme cases, not for ordinary marital misconduct.

My spouse spent money on their affair. Can I get that back?

This is where infidelity does have real financial consequences. Money spent on an affair — hotels, trips, gifts, rent on an apartment for a paramour, transferred funds — is marital money spent for a non-marital purpose. Under DRL § 236(B)(5)(d), the court considers the "wasteful dissipation" of marital assets when dividing property, and courts routinely credit the innocent spouse for marital funds dissipated on an affair. Proving dissipation requires documentation: credit card statements, bank records, and sometimes forensic accounting. If you suspect significant affair-related spending, preserve financial records early — this claim is won or lost on the paper trail.

Does infidelity affect child custody in New York?

Generally no. Custody is decided under the best interests of the child standard, and a parent's affair is not, by itself, relevant to their fitness as a parent. Infidelity becomes relevant only when the surrounding conduct affects the children — for example, exposing children to inappropriate situations, abandoning parenting responsibilities, or introducing a new partner in a way that harms the children's stability. Courts distinguish between conduct that wronged the other spouse and conduct that affects the children; only the latter matters in custody.

Can a prenup include an infidelity penalty in New York?

So-called "lifestyle clauses" that impose a financial penalty for cheating appear in some prenuptial agreements, but their enforceability in New York is doubtful. New York public policy disfavors provisions that inject fault into the financial framework the legislature made no-fault, and a clause requiring litigation of whether adultery occurred recreates exactly the proof problems no-fault divorce was designed to eliminate. No New York appellate decision has squarely enforced an infidelity penalty clause. A well-drafted prenuptial agreement protects assets through separate property designations and maintenance terms — tools with established enforceability — rather than fault penalties.

Was adultery a crime in New York?

It was — for over a century, adultery was a class B misdemeanor under Penal Law § 255.17, though prosecutions were vanishingly rare. New York repealed the criminal adultery statute in November 2024. The repeal has no practical effect on divorce cases: even when the statute existed, it played no role in matrimonial litigation, and its disappearance underscores the direction of New York law — treating infidelity as a personal matter rather than a legal wrong to be punished, in either criminal or financial terms.

Does Infidelity Affect Alimony in New York?

When a marriage ends because of an affair, one of the first questions the betrayed spouse asks a divorce attorney is some version of: “Will the cheating count against them?” And the spouse who strayed asks the mirror image: “Will I be punished financially?”

The honest answer surprises almost everyone. In New York, infidelity almost never affects alimony — which New York law calls spousal maintenance. Maintenance is calculated by an income-based statutory formula, and marital fault is not part of the equation. But that headline rule has important exceptions and edges: money spent on an affair can absolutely be recovered, truly extreme misconduct can change the financial outcome, and the strategic decisions an affair triggers — when to file, what to document, whether to pursue fault grounds — can meaningfully affect how a divorce unfolds.

This post explains exactly how New York law treats infidelity in divorce: the maintenance formula, the fault rules, the egregious conduct exception, the wasteful dissipation doctrine, and what to do practically if an affair is part of your divorce.

New York Is a No-Fault State — and the Formula Doesn't Ask Why

Since 2010, New York has permitted no-fault divorce under Domestic Relations Law § 170(7): either spouse may obtain a divorce by stating under oath that the marriage has been irretrievably broken for at least six months. No proof of misconduct is required, and the overwhelming majority of New York divorces — including divorces precipitated by affairs — proceed on this ground, whether as an uncontested divorce or a contested one.

Spousal maintenance follows the same fault-blind logic. Under DRL § 236(B), post-divorce maintenance is calculated by a guideline formula based on the parties’ incomes:

Without child support: 30% of the payor’s income minus 20% of the payee’s income
With child support (payor also paying child support to the same recipient): the lesser of (a) 20% of payor income minus 25% of payee income, or (b) 40% of the combined income minus the payee’s income

The formula applies to the first $241,000 of the payor’s income — the cap in effect for 2026, adjusted every two years for inflation. For income above the cap, and for deviations from the guideline, the court weighs the statutory factors in DRL § 236(B)(6)(e): the age and health of the parties, earning capacity, the need to pay for education or training, the standard of living during the marriage, caregiving responsibilities, and more than a dozen others.

Read that factor list carefully and you will notice what is missing: fault. The legislature did not include adultery, abandonment, or cruelty among the maintenance factors. A spouse who cheated pays (or receives) the same guideline maintenance as a spouse who did not.

The Court of Appeals Has Settled the Question

This is not just a reading of the statute — New York’s highest court has addressed it directly. In Howard S. v. Lillian S. (2010), the Court of Appeals held that adultery, standing alone, does not constitute the kind of “egregious conduct” that permits a court to alter the financial incidents of a divorce. The court reaffirmed the standard from Blickstein v. Blickstein: marital fault may be considered only where the conduct is “so egregious or uncivilized as to bespeak of a blatant disregard of the marital relationship.”

What has met that standard in reported cases? Attempted murder of a spouse. Vicious assaults. Conduct at the outer extreme of human behavior. What has not met it? Affairs — even long-running ones, even affairs with profound emotional consequences for the family. The courts’ reasoning is institutional as much as moral: if ordinary fault affected money, every divorce would become a trial about the marriage’s failures, which is precisely what the no-fault reform was designed to end.

Where Infidelity DOES Matter Financially: Wasteful Dissipation

Here is the exception that matters in real cases. While the fact of an affair does not change the financial outcome, the money spent on it does.

Marital funds are joint property. When one spouse spends marital money on a non-marital purpose — and an affair is the textbook example — that spending is wasteful dissipation of marital assets, an express factor in equitable distribution under DRL § 236(B)(5)(d). Courts routinely credit the innocent spouse for dissipated funds, effectively adding the spent money back into the marital estate and charging it against the spending spouse’s share.

Affair-related dissipation commonly includes:

Travel and hotels — trips taken with a paramour, charged to marital credit cards
Gifts — jewelry, electronics, designer goods purchased for the affair partner
Housing — rent, furniture, or utilities paid on an apartment for the paramour
Cash transfers — Venmo, Zelle, and wire transfers to or for the affair partner
Support of a second household — in long-running affairs, sometimes years of documented spending

Two practical points follow. First, documentation wins these claims: bank statements, credit card records, and — in significant cases — a forensic accountant who traces the spending. If you suspect affair-related dissipation, preserve financial records immediately and tell your attorney before accounts are closed or statements become harder to obtain. Second, dissipation is a property-division doctrine, but its effect can ripple into maintenance: the statutory factors include the equitable distribution award and “any other factor” the court finds just and proper, so a substantial dissipation finding shapes the overall financial picture the court is balancing.

Adultery as a Divorce Ground: Technically Alive, Practically Retired

Adultery remains a fault ground for divorce under DRL § 170(4), and some betrayed spouses instinctively want to file on it. It is almost never the right strategy, for three reasons:

Proof is hard. New York law does not allow a divorce to be granted on the adulterous spouse’s admission alone — corroborating evidence is required, which historically meant private investigators and circumstantial proof of opportunity and inclination
Defenses exist. Condonation (you learned of the affair and continued the marriage), connivance, recrimination, and a five-year limitations period can each defeat an adultery claim
Winning gets you nothing extra. Because fault does not affect maintenance, property division, or custody, a successful adultery claim produces the same financial outcome as a no-fault divorce — after months of additional litigation, expense, and painful testimony

A footnote for the curious: adultery was even a crime in New York — a class B misdemeanor under Penal Law § 255.17 — until the legislature repealed the statute in November 2024. The repeal changed nothing in divorce court, but it captures the direction of New York law: infidelity is treated as a personal wrong, not a legal one.

Infidelity and Child Custody

Parents often assume an affair will count against the other parent in a custody dispute. New York courts decide custody under the best interests of the child standard, and a parent’s infidelity is not, by itself, evidence of parental unfitness. Judges look at the conduct’s effect on the children, not on the marriage. An affair becomes custody-relevant only through its consequences — a parent who repeatedly left young children unsupervised to meet a paramour, exposed the children to inappropriate situations, or destabilized the children’s lives in the process. Absent that, courts treat the affair as an issue between the adults.

Can You Contract Around the Rule? Infidelity Clauses in Prenups

Some couples ask whether a prenuptial agreement can do what the statute will not — impose a financial penalty for cheating. These “lifestyle clauses” make headlines in celebrity divorces, but in New York their enforceability is doubtful. A fault penalty invites exactly the litigation New York’s no-fault framework exists to prevent, and no New York appellate court has squarely enforced one. A prenup’s real power lies elsewhere: designating separate property, setting maintenance terms with established enforceability, and protecting businesses and inheritances — outcomes that do not depend on proving what happened inside the marriage.

What to Do If Infidelity Is Part of Your Divorce

If you are the betrayed spouse:

Understand early that the affair itself will not increase your maintenance — calibrating expectations prevents costly strategic mistakes
Preserve financial records and flag suspicious spending for your attorney; the dissipation claim is where the affair has real financial teeth
Do not use self-help surveillance that could violate wiretapping or computer-access laws — illegally obtained evidence can backfire, and in some cases creates liability
File on no-fault grounds unless your attorney identifies a specific strategic reason not to

If you had the affair:

The law does not financially punish the affair — but dissipation is a genuine exposure. Be candid with your attorney about affair-related spending so it can be addressed rather than discovered
Do not delete messages or financial records once divorce is contemplated; destruction of evidence is far more damaging than the evidence itself
Recognize that guilt-driven settlement decisions — giving away more than the law requires — are common and rarely wise. Settle on the law and the numbers

For both spouses: the affair usually matters most in how the divorce is conducted, not what it yields. High-conflict fault narratives drive up fees and prolong cases. An experienced New York divorce attorney channels the case toward the issues that actually move the outcome: income, assets, dissipation, custody arrangements, and support.

Talk to a New York Divorce Attorney About Your Situation

Every divorce involving infidelity carries a version of the same tension: what the law weighs and what the heart weighs are different things. Yazdi Law represents spouses on both sides of that divide throughout New York City and Long Island — in uncontested divorces, contested litigation involving dissipation and complex finances, custody matters, and prenuptial and postnuptial agreements. Consultations are available in English and Farsi, including for Iranian-American clients whose divorces involve mahr (mehrieh) obligations alongside New York maintenance law.

Call (917) 565-7286 or use the form below for a confidential consultation about how New York’s maintenance and property rules apply to your specific circumstances.

Does Infidelity Affect Alimony? How It Works in New York