New York Domestic Relations Law section 170(4) defines adultery as the commission of an act of sexual or deviate sexual intercourse, voluntarily performed by the defendant, with a person other than the plaintiff during the marriage.
Under NY Penal Law section 255.17, a person is guilty of adultery when he engages in sexual intercourse with another person at a time when he has a living spouse, or the other person has a living spouse. Adultery is classified as a class B misdemeanor.
In order to prove adultery, an affidavit for the plaintiff is not sufficient, because a spouse is not competent to testify as to adultery committed by the other spouse. See CPLR § 4502(a). However, a spouse is allowed to give testimony to prove the marriage, disprove the adultery, or disprove a defense after evidence has been introduced tending to prove such defense.
Bronx divorce lawyer Bryan J. Hutchinson will fight for your right to child custody, child support, spousal maintenance, and equitable distribution of property. We zealously represent divorce and family law clients for over 20 years in New York State Courts in the Bronx, Brooklyn, Queens, Manhattan, Westchester, and Nassau Counties. Call the Law Office of Bryan J. Hutchinson, PLLC at (718) 671-0900 for a confidential consultation.