In New York State, before “fault” can be a factor in equitably distributing the parties’ marital property after a divorce, the “fault” must be “egregious”. Not to be crass, but “garden variety adultery” is not egregious conduct. Therefore, equitable distribution will be decided without consideration of the adultery.
An example of egregious conduct in New York is where one spouse takes out a contract to have the other spouse killed. Generally speaking, if the conduct is violent and rises to the level of a felony as described by the Penal Law, there is a good possibility that the court will consider the conduct to be egregious in nature.
Philip S. Milone is a matrimonial lawyer with 21 years of experience practicing in New York, Brooklyn, Queens, and Suffolk Counties.