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Attorney & Mediator
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Experience:  Attorney & Certified Mediator
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I live in NY. I had an affair and got caught(spouse has proof)My

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I live in NY. I had an affair and got caught(spouse has proof)My spouse(husband) has just retired with a pension from NYC Dept of Corrections. I have been married 25 years and he worked at this job for the last 20 of the 25. I had filed for divorce during this time(the affair) but terminated the action hoping for a reconciliation. I had also filed for divorce approx 18 months ago and also terminated it hoping for a reconciliation(before the affair). Question is-am I still entitled to half his pension if I decide to divorce him now?
Submitted: 5 years ago.
Category: Family Law
Expert:  Attorney & Mediator replied 5 years ago.
New York is an equitable distribution state, which means that distribution is not necessarily 50/50 but what is reasonable and fair depending on each particular person's divorce case. It starts off as an equal share, but that can be reduced or eliminated because of the adultery committed. Generally reasons why you had the affair would be questioned, was it because of problems in the household, violence, etc...that made you leave the vows of marriage or whether it was just an intentional act to engage in the affair and that the marriage had no problems other than this affair. A difference can result depending on your particular situation. The multiple attempts to reconcile will also be questioned, why they did not work and who no longer wanted to be in the marriage.

BotXXXXX XXXXXne, because of the affair it is possible that your rights to the pension can be affected. I don't see you loosing the pension, but it can result in a reduction at the discretion of the court.


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Legal Disclaimer. The information given by me is not legal advice. . You should not and may not rely on anything on this website as legal advice. I am not establishing an attorney-client relationship with you. I am providing only research, resources and information only for you to be informed and educated about your particular needs and my answer is limited to the facts presented. I do not provide general or specific legal advice. . I also do not claim to be licensed to practice in the state where this information is being provided. I strive to provide quality information, but I make no claims, promises or guarantees about the accuracy, completeness, or adequacy of the information contained in or linked herein and it’s associated sites. As law is always changing, you are recommended to speak with the appropriate legal counsel for accurate and complete information. No part of this disclaimer can be reproduced without the consent of the owner. Thank you.

Customer: replied 5 years ago.
So what is the difference between fault and no fault divorce? Would this be a "fault situation?" The grounds for the first & second action were constructive abandonment, I did everything alone. The reconciliation aren't working because nothing changed.
Expert:  Attorney & Mediator replied 5 years ago.
Thank you for your reply.

No fault means that both of you have agreed not to place blame on the other for the break up of the marriage. A fault divorce means there is proof that one spouse is to be blamed for the marriage. In a no-fault the martial misconduct would not be considered, while in a fault divorce it would. In New York you can only file based on certain grounds for divorce [see below]. If the divorce will be uncontested, this means both of you have agreed to the reasons for the divorce and have settled property distribution through an agreement.

If he does not agree with the grounds you have stated for the divorce, then he can contest your divorce petition if he wants to prove fault. By proving fault he wants to preserve the right to use the adultery as a basis to argue against you getting the pension or a reduction. In essence if you wanted an uncontested divorce, his objections as to the grounds would change your divorce into a contested one.

Quoting New York law:

Grounds for Filing: The Complaint for Divorce must declare the appropriate New York grounds upon which the divorce is being sought. The appropriate lawful ground will be that which the parties agree upon and can substantiate, or that which the filing spouse desires to prove to the court. The divorce grounds are as follows:

(1) The cruel and inhuman treatment of the plaintiff by the defendant such that the conduct of the defendant so endangers the physical or mental well being of the plaintiff as renders it unsafe or improper for the plaintiff to cohabit with the defendant.

(2) The abandonment of the plaintiff by the defendant for a period of one or more years.

(3) The confinement of the defendant in prison for a period of three or more consecutive years after the marriage of plaintiff and defendant.

(4) The commission of an act of adultery, provided that adultery for the purposes of articles ten, eleven, and eleven-A of this chapter, is hereby defined as the commission of an act of sexual intercourse, oral sexual conduct or anal sexual conduct, voluntarily performed by the defendant, with a person other than the plaintiff after the marriage of plaintiff and defendant. Oral sexual conduct and anal sexual conduct include, but are not limited to, sexual conduct as defined in subdivision two of section 130.00 and subdivision three of section 130.20 of the penal law.

(5) The husband and wife have lived apart pursuant to a decree or judgment of separation for a period of one or more years after the granting of such decree or judgment, and satisfactory proof has been submitted by the plaintiff that he or she has substantially performed all the terms and conditions of such decree or judgment.

(6) The husband and wife have lived separate and apart pursuant to a written agreement of separation, subscribed by the parties thereto and acknowledged or proved in the form required to entitle a deed to be recorded, for a period of one or more years after the execution of such agreement and satisfactory proof has been submitted by the plaintiff that he or she has substantially performed all the terms and conditions of such agreement. Such agreement shall be filed in the office of the clerk of the county wherein either party resides. In lieu of filing such agreement, either party to such agreement may file a memorandum of such agreement, which memorandum shall be similarly subscribed and acknowledged or proved as was the agreement of separation and shall contain the following information: (a) the names and addresses of each of the parties, (b) the date of marriage of the parties, (c) the date of the agreement of separation and (d) the date of this subscription and acknowledgment or proof of such agreement of separation. (Consolidated Laws of New York - Domestic Relations Laws - Volume 8 - Sections: 170 and Article 10, Section 170, and Article 13, Section 230)




If I have been helpful, please click Accept for my time and research. If you need more help, please click reply. Positive Feedback is greatly appreciated and reciprocated. Feedback should relate to customer service and not about the law, which I have no control over, thank you.

Legal Disclaimer. The information given by me is not legal advice. . You should not and may not rely on anything on this website as legal advice. I am not establishing an attorney-client relationship with you. I am providing only research, resources and information only for you to be informed and educated about your particular needs and my answer is limited to the facts presented. I do not provide general or specific legal advice. . I also do not claim to be licensed to practice in the state where this information is being provided. I strive to provide quality information, but I make no claims, promises or guarantees about the accuracy, completeness, or adequacy of the information contained in or linked herein and it’s associated sites. As law is always changing, you are recommended to speak with the appropriate legal counsel for accurate and complete information. No part of this disclaimer can be reproduced without the consent of the owner. Thank you.

Customer: replied 5 years ago.
does sex have to be involved with the adultery? Basically he has proof an email affair and cell phone records.
Expert:  Attorney & Mediator replied 5 years ago.
It depends if the email does not show an admission of an affair and you have never admitted to the affair, then it would be his burden to prove to show adultery took place. Proof could be the actual sex involved, but it can also be photos or witnesses of holding hands, kissing, entering a motel room, his home, gifts and admissions of the affair.




If I have been helpful, please click Accept for my time and research. If you need more help, please click reply. Positive Feedback is greatly appreciated and reciprocated. Feedback should relate to customer service and not about the law, which I have no control over, thank you.

Legal Disclaimer. The information given by me is not legal advice. . You should not and may not rely on anything on this website as legal advice. I am not establishing an attorney-client relationship with you. I am providing only research, resources and information only for you to be informed and educated about your particular needs and my answer is limited to the facts presented. I do not provide general or specific legal advice. . I also do not claim to be licensed to practice in the state where this information is being provided. I strive to provide quality information, but I make no claims, promises or guarantees about the accuracy, completeness, or adequacy of the information contained in or linked herein and it’s associated sites. As law is always changing, you are recommended to speak with the appropriate legal counsel for accurate and complete information. No part of this disclaimer can be reproduced without the consent of the owner. Thank you.

Attorney & Mediator, Lawyer
Category: Family Law
Satisfied Customers: 20012
Experience: Attorney & Certified Mediator
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