Confront him or her or ignore it.
If you want a divorce, your spouse cheating has nothing to do with getting that divorce in a Court of law. It does, have a lot to do with basic trust and fidelity within a marriage, but I am speaking old school from my personal experience being married almost 40 years.
Plus the economic pressure is so great in Suffolk County, many spouses simply ignore it, and hope it will go away. Some spouses will confront the other, challenge them and insist that it end. Some spouses will file for a divorce.
However, our office will not use the grounds of adultery, because a Judge is not going to like that, it sets a bad tone right away, the Judge is going to say “if other non-confrontational grounds are available, why choose adultery” (which requires naming the boyfriend or girlfriend in the lawsuit).
Some couples, in order to obtain economic or custodial leverage, will hire a private investigator to take pictures of motels or other places or displays a public affection between their spouse and their suspected paramour. I suggest you have a lot of money if you are thinking of this plan.
Do grounds affect equitable distribution? They might. Our office does not use any of the available grounds in New York except irretrievable breakdown and conversion from a separation agreement.
However, there are litigating firms out there whose reputation is strictly to fight fight fight and bill bill bill, who will use cruel and inhumane treatment as the grounds for divorce. Here, if it can be shown that one of the spouses was truly abusive, and led to or is leading to a host of past issues in the marriage affecting the money or the children, a Judge could (and historically has) award one of the spouses more of an asset or relating to custody, after a trial.
The issue of awarding custody is completely different than dividing money or assets. The money or asset part of any divorce belongs in a Civil Court of law (not a Criminal Court).
The custody however does not. However, there is no place in our Court system other than the Supreme Court to put it. So Judges end up assigning attorneys for the children (formally referred to as Law Guardians), to meet, evaluate and report to the Judge as to where the best interests of the children lie. The law books used to favor the mother for custody if the child was of “tender year” (typically under 10 or 12). For over 30 years now, there is no gender distinction as to who is a better custodial parent. Statutes use the terminology whatever is in “the best interests of the children”. If you can figure that out, you can accurately predict the outcome for your children.
Custody dispute: before you hire a lawyer to litigate it, I would recommend calling my office, speaking to me for 30 minutes, letting me give you the phone number of a very qualified Law Guardian who takes private cases, and follow her advice. The outcome could be the same in the result of who gets custody, but also likely to be $100,000 different in costs.
If you believe you are able to navigate through about a hundred pages of the Do It Yourself divorce kit offered by the New York State Court System, I urge you to give it a shot. You can access these forms by clicking here.
If you get frustrated trying to accomplish this weighty task, give us a call and zoom in for a free mediation session. The entire cost of a simple mediation (including those with young children), is $3,500 (court costs and other orders are always extra).