In a New York divorce, what your spouse may use against you can involve finances, parenting decisions, text messages, social media activity, and fault-based allegations. These issues can become especially important in contested cases, where evidence may affect property division, support, custody, or the grounds for divorce.
If you are facing a contested divorce in New York, you may be sorting through text messages, social media posts, bank records, parenting decisions, or allegations your spouse may try to use against you. Our experienced Manhattan divorce attorney, Richard Roman Shum, can help you understand which issues may matter legally, preserve relevant information, and avoid early decisions that could affect negotiations or court proceedings.
This guide explains the fault grounds your spouse may raise, how financial misconduct can affect property division, how digital evidence may be used, how parenting behavior can affect custody, what defenses may apply to fault claims, and what steps may help protect your position in a contested divorce. Call the Law Office of Richard Roman Shum, Esq. at (646) 259-3416.
Does Fault Still Matter in a New York Divorce?
Since 2010, New York State has allowed no-fault divorce based on the irretrievable breakdown of the marriage for at least six months. This means a spouse can end the marriage without proving the other spouse did anything wrong. However, introducing the no-fault option did not eliminate the state’s existing fault-based grounds.
New York continues to recognize both no-fault and fault-based grounds for divorce. In a contested case, a spouse may plead a fault ground, but the conduct behind the allegation usually matters most when it affects finances, safety, parenting, or earning capacity.
The distinction matters because in an uncontested divorce, where both parties agree on all terms, fault rarely comes into play. In a contested case before a New York County Supreme Court judge, however, fault allegations may become part of the disputes over economic and custody issues.
What Are New York’s 7 Grounds for Divorce?
Under New York Domestic Relations Law § 170, there are seven grounds for divorce. Four are fault-based, one is commonly called no-fault, and two are conversion grounds based on living separate and apart under a separation judgment or written separation agreement:
Fault-based grounds:
- Cruel and inhuman treatment
- Abandonment for one or more years
- Imprisonment for three or more consecutive years after the marriage
- Adultery
No-fault ground:
- Irretrievable breakdown of the marriage for at least six months
Conversion grounds:
- Living separate and apart for six months or more under a judgment or decree of separation
- Living separate and apart for six months or more under a written separation agreement
Any of the four fault grounds can be raised against you by your spouse in a contested proceeding. Even if you file on no-fault grounds, your spouse may counterclaim using a fault ground.
Can Fault Affect Property Division or Alimony?
Under DRL § 236-B, New York courts divide marital property through equitable distribution, which means fair but not necessarily equal. While courts generally do not treat marital fault as a primary factor in dividing property, egregious fault can influence the outcome.
Serious misconduct may affect equitable distribution when it fits within New York’s statutory factors, such as domestic violence, wasteful dissipation of marital property, or transfers made without fair consideration. However, ordinary marital fault, such as adultery by itself, typically has little effect on property division unless it connects to financial misconduct, safety, or another relevant statutory factor.
In maintenance decisions, courts generally start with New York’s statutory maintenance framework and may adjust the guideline amount or duration when the result would be unjust or inappropriate. Relevant factors can include wasteful dissipation of marital property and acts by one spouse that inhibited the other spouse’s earning capacity or ability to obtain meaningful employment, including domestic violence. Maintenance is not meant to punish ordinary marital fault.
Key Takeaway: Fault allegations do not automatically control property division or maintenance. The conduct matters most when it overlaps with financial misconduct, domestic violence, wasteful dissipation, or earning-capacity issues.
If you are facing fault allegations in your divorce, Richard Roman Shum can help you understand how these claims may affect your case and develop a strategy to respond.
What Fault Grounds Can Be Used Against You?
When a spouse files for divorce on fault grounds, they must prove the specific ground alleged. Each fault ground has its own proof requirements, timing issues, and possible defenses.
What Counts as Cruel and Inhuman Treatment?
Cruel and inhuman treatment is a fault ground in New York. To prove this ground, the conduct must endanger the plaintiff’s physical or mental well-being and make it unsafe or improper for the plaintiff to continue living with the defendant. Arguments, ordinary marital conflict, or an isolated act in an otherwise long and peaceful marriage may not be enough.
The conduct may involve physical, verbal, sexual, or emotional cruelty, but the key issue is whether the conduct meets the statutory standard. If the alleged conduct occurred more than five years before the divorce action and the other spouse objects, the claim may be dismissed.
How Is Adultery Used Against a Spouse in NY?
Adultery is a fault ground under DRL § 170(4), but it can be difficult to prove in a New York divorce. Evidence from someone besides the plaintiff and the defendant is generally needed.
Adultery claims also have strict proof requirements and statutory defenses. A spouse generally needs evidence beyond the testimony of the two spouses, and defenses may include connivance, condonation, recrimination, or the five-year discovery limit.
Proving adultery may establish a fault ground for divorce, but adultery alone usually does not control financial outcomes. It becomes more important when it connects to marital funds, safety concerns, or the children’s best interests.
What Is Constructive Abandonment in New York?
Abandonment under DRL § 170(2) requires abandonment for one year or longer. In New York, abandonment may involve physical departure, a lockout, or constructive abandonment:
- Actual abandonment: One spouse physically leaves the marital home for one year or longer without good reason and without the other spouse’s consent.
- Lockout abandonment: One spouse refuses to allow the other spouse back into the marital home for more than one year.
- Constructive abandonment: One spouse refuses to engage in sexual relations with the other spouse for one year or longer, without consent, good cause, or justification, and despite repeated requests.
When constructive abandonment is alleged, your spouse must show that they made repeated requests for sexual relations and that you refused without a legitimate reason for at least one year.
The following table summarizes the four fault grounds, their proof requirements, time limitations, and key defenses:
| Fault Ground | What Must Be Shown | Time Issue | Common Defense or Issue |
| Cruel and inhuman treatment | Conduct that makes continued cohabitation unsafe or improper | Older conduct may face a five-year timing challenge | Whether the conduct meets the statutory standard |
| Adultery | Voluntary sexual contact, as defined by New York law, with someone other than the spouse after marriage | Five-year discovery limit may apply | Corroboration, connivance, condonation, recrimination, or lack of proof |
| Abandonment | One spouse abandons the other for one year or longer | The required period must be met | Consent, justification, or lack of continuous abandonment |
| Imprisonment | Confinement for three or more consecutive years after the marriage | Timing requirements must be met | Whether the confinement and timing requirements are satisfied |
If your spouse has raised fault allegations against you, contact Richard Roman Shum to discuss which defenses may apply to your situation.
How Is Financial Misconduct Used Against You?
Financial conduct during a marriage can become a major issue in contested divorce proceedings. Under DRL § 236(B), courts consider a range of factors when dividing marital property, including whether either spouse engaged in wasteful dissipation of marital assets or attempted to hide income and property.
What Is Dissipation of Marital Assets?
Dissipation occurs when one spouse uses marital assets for purposes unrelated to the marriage, especially during or shortly before the divorce. Courts may consider dissipation because it can reduce the marital estate available for equitable distribution.
Common examples of dissipation include:
- Gambling away significant sums of marital funds
- Spending large amounts on an extramarital relationship
- Making secret transfers of money to family members or friends
- Running up excessive credit card debt on non-marital expenses
- Destroying or selling marital property at below-market value
When a court finds that one spouse dissipated marital assets, the remedy is typically an adjustment in the equitable distribution calculation. The dissipating spouse may receive a smaller share of the remaining marital estate to account for the funds they already spent or transferred.
Can Hiding Assets Be Used Against You in NY?
In contested matrimonial actions involving financial issues, both parties are generally required to exchange and file sworn Statements of Net Worth. A Statement of Net Worth details income, assets, liabilities, expenses, and certain asset transfers. Failing to disclose assets can have serious consequences.
If hidden assets or incomplete disclosures are discovered, the court may consider remedies such as:
- Drawing an inference against the non-disclosing spouse
- Adjusting equitable distribution where the facts support it
- Imposing discovery penalties or attorney’s fees where allowed
- Granting appropriate post-judgment relief if a party proves hidden assets, fraud, misrepresentation, or other legally sufficient grounds after the divorce is finalized
Hiding assets can also convert what might have been an uncontested divorce into a contested one. Once trust between the parties breaks down over financial disclosures, the likelihood of reaching a negotiated settlement drops significantly.
Key Takeaway: Financial misconduct, including wasteful spending and hidden assets, can affect equitable distribution. Courts may adjust property division to account for wasteful dissipation, improper transfers, or concealed financial information.
Divorce Attorney in Manhattan: Law Office of Richard Roman Shum, Esq.
Richard Roman Shum, Esq.
Richard Roman Shum is a Manhattan divorce and family law attorney serving clients in New York City. Attorney Shum handles matters involving divorce, matrimonial and family law, child custody, child support, property division, and spousal support. His practice includes both contested and uncontested divorce matters, along with related family law concerns that can affect a parent’s finances, home life, and relationship with their children.
Attorney Shum earned his J.D. from Suffolk University Law School, his M.A. from Emerson College, and his B.A. from Washington University in St. Louis. He was admitted to practice in New York in 2008, appearing in the U.S. District Courts for the Southern and Eastern Districts of New York.
Can Your Behavior Affect Child Custody?
In a contested divorce involving children, your conduct as a parent is directly relevant to the court’s custody determination. New York courts decide custody based on the “best interests of the child” standard, which gives judges broad discretion to evaluate each parent’s behavior, history, and ability to provide a stable home.
What Parental Conduct Do Courts Look At?
In divorce cases, New York County Supreme Court judges may consider a wide range of parental behavior when making custody decisions. Factors that can be used against you include:
- Domestic violence: If domestic violence allegations are proven by a preponderance of the evidence in a custody case, the court must consider the effect of that violence on the child’s best interests. A history of violence against the other parent or the children may significantly affect custody or visitation.
- Substance abuse: Evidence of drug or alcohol abuse that impairs your ability to care for the children may lead to reduced custody or supervised visitation, depending on the facts.
- Interference with the other parent: Attempting to alienate the children from the other parent, denying court-ordered visitation, or making bad-faith allegations can work against a parent. A good-faith allegation based on a reasonable belief about child abuse, neglect, or domestic violence should not be used against a parent by itself.
- Criminal record: A recent criminal history, particularly involving violence, sexual offenses, or drug crimes, may be considered if it relates to parenting ability, safety, stability, or the child’s best interests.
- Mental health issues: While mental health challenges alone are not disqualifying, untreated conditions that affect parenting ability may be considered.
- Living situation and stability: Courts look at each parent’s home environment, ability to provide for the child’s needs, and willingness to foster a relationship with the other parent.
Does Adultery Affect Custody or Visitation?
Many clients worry that their spouse’s adultery, or their own, will determine the custody outcome. In practice, adultery alone rarely affects custody or visitation in New York. Courts distinguish between a spouse’s behavior toward the other spouse and that spouse’s behavior as a parent.
Adultery may become relevant to custody only if it directly affected the children. For example, if a parent exposed the children to inappropriate situations, neglected the children while pursuing the extramarital relationship, or introduced the children to a partner who posed a safety risk, the court may factor that conduct into its best-interests analysis.
Key Takeaway: Custody decisions are based on the best interests of the child, not on punishing a parent. Domestic violence, substance abuse, and interference with the other parent’s relationship carry far more weight than adultery in custody determinations.
Can Digital Evidence Be Used Against You in NY?
Digital evidence can play an important role in contested divorce cases when it relates to disputed issues such as finances, custody, spending, or communications between the parties. Text messages, emails, social media posts, financial records, and location data may all become part of discovery or court proceedings.
Are Text Messages and Emails Admissible?
Text messages and emails may be admissible in New York divorce proceedings when they are relevant, properly authenticated, and not barred by another evidence rule. Authentication means establishing that the message is what the party claims it is, including whether it was sent by the person alleged to have sent it and whether it has been altered.
Authentication can be accomplished through:
- Testimony from the recipient or sender
- Metadata showing the origin of the message
- Circumstantial evidence, such as content that only the sender would know
- Phone records corroborating the timing and parties involved
Texts, emails, and other electronically stored information may be requested during discovery when they are relevant to disputed issues. The party offering the evidence must still authenticate it and satisfy other admissibility rules. The safer practical rule is to treat written communications during divorce as potential evidence.
How Can Social Media Be Used Against You?
Social media posts may be used as evidence in contested divorces. Posts, photos, check-ins, and comments on platforms like Facebook, Instagram, and X (formerly Twitter) may be used to:
- Contradict claims of financial hardship, such as posting vacation photos while claiming an inability to pay support
- Disprove custody claims, such as posting photos of partying while arguing that they are the more responsible parent
- Establish a timeline of behavior, such as dating posts that corroborate an adultery allegation
- Demonstrate lifestyle or spending habits inconsistent with sworn financial disclosures
Even deleted posts may be recoverable through discovery or cached copies. Courts have admitted social media evidence when it is relevant, authenticated, and not obtained through illegal means such as hacking into the other party’s account.
Key Takeaway: Digital communications can affect divorce disputes when they undermine financial, custody, or credibility positions. Careful communication during a contested divorce can help avoid creating evidence that may be used against you.
Richard Roman Shum advises clients on how to handle digital communications during a divorce to avoid creating evidence that could be used against them.
What Cannot Be Used Against You in a Divorce?
Not every allegation will support a fault-based divorce claim or affect the outcome of a contested case. Some allegations are limited by proof requirements, timing rules, or statutory defenses.
What Defenses Exist Against Fault Allegations?
If your spouse raises adultery as a fault ground, DRL § 171 provides several defenses. A divorce based on adultery may be denied if the adultery was procured or encouraged by the accusing spouse, if the accusing spouse forgave the offense through voluntary cohabitation after learning of it, if the action was not started within five years after discovery, or if the accusing spouse also committed adultery under circumstances that would have entitled the other spouse to a divorce.
Other fault grounds have different requirements and time limits. For example, DRL § 210 generally bars a divorce or separation action on a ground that arose more than five years before the action was filed, with statutory exceptions. A defense strategy should match the specific ground alleged.
A successful defense may defeat the specific fault ground alleged. However, the divorce may still proceed on another available ground, including New York’s no-fault ground, if the legal requirements are met.
Does No-Fault Divorce Protect You from Fault Claims?
Filing for divorce on the no-fault ground of irretrievable breakdown does not automatically shield you from fault allegations. If your spouse files a counterclaim on a fault ground, or if the case is contested, fault-based conduct may still be raised in the context of equitable distribution, spousal maintenance, or custody proceedings.
Even in a no-fault divorce, conduct may still matter when it is legally relevant to a disputed issue. Financial conduct may affect equitable distribution or maintenance, while parenting-related conduct may affect custody when it bears on the child’s best interests.
How Do You Protect Yourself in a NY Divorce?
Taking proactive steps to protect yourself before and during the divorce process can make a significant difference in the outcome of your case.
What Mistakes Can Hurt Your Divorce Case?
Several common mistakes can create evidence that your spouse may use against you in a contested divorce:
- Moving out of the marital home without a plan: Leaving the marital home does not automatically establish abandonment. However, abandonment may be alleged if a spouse stays away for one year or longer without good reason, without the other spouse’s consent, and the absence continues when the action begins. Moving out may also create practical custody concerns if it changes the child’s schedule or reduces parenting time before temporary orders are in place.
- Signing documents without legal counsel: Agreeing to financial terms or custody arrangements without an attorney’s review may leave you bound by unfavorable financial or custody terms.
- Destroying records or evidence: Deleting financial records, emails, or text messages can lead to sanctions and adverse inferences in court.
- Social media oversharing: Posting about your divorce, your social life, or your finances may give your spouse evidence to use against you.
- Emptying joint accounts or moving assets: Unilateral transfers of marital funds may be treated as wasteful dissipation or improper transfers, depending on the facts. If the court finds that marital assets were wasted, hidden, or transferred without fair consideration, that conduct may affect equitable distribution.
- Discussing the case with your children: Involving your children in the divorce dispute may be viewed as interference or poor parental judgment, depending on the facts, and may harm your custody position.
Why Does It Matter If Your Divorce Is Contested vs. Uncontested?
The distinction between contested and uncontested divorce affects how much of this evidence may matter. In an uncontested divorce, both spouses agree on the major terms, so fault allegations and contested evidence usually play a limited role. In a contested divorce, disputed finances, parenting issues, digital communications, and fault allegations may become part of the case.
Speak With a New York Divorce Attorney About Your Case
If you are facing a contested divorce and are concerned about what your spouse may use against you, early legal guidance can help you make informed decisions before avoidable mistakes affect your case.
At the Law Office of Richard Roman Shum, Esq., Attorney Shum can review what your spouse is claiming, assess the records or communications involved, and help you respond before those issues affect property division, support, custody, or settlement negotiations.
Contact us at (646) 259-3416 to schedule a consultation. Our office is located at 20 Clinton St FRNT 5D, New York, NY 10002 and serves clients throughout Manhattan and the surrounding boroughs.
Frequently Asked Questions
Can text messages be used as evidence in a New York divorce?
Text messages may be used in a New York divorce when they relate to a disputed issue, can be properly authenticated, and are allowed under the evidence rules. They may become relevant to financial disputes, parenting issues, misconduct allegations, or communications between the spouses.
Does adultery affect how property is divided in New York?
Adultery by itself does not control how marital property is divided in New York. It may matter more if marital money was spent on the affair or if the conduct connects to another financial, safety, or parenting issue.
What is the statute of limitations on fault grounds in NY?
The timing rules depend on the fault ground. Cruel and inhuman treatment generally requires recent conduct, and older claims may face a five-year timing challenge. Imprisonment may be used as a ground while the spouse is imprisoned or within five years after release. Adultery may be barred if the divorce action is not started within five years after discovery. Abandonment is different because the one-year period is part of proving the ground itself. To use abandonment, the spouse must generally have abandoned the other spouse for one year or longer.
Can social media posts hurt my divorce case in New York?
Social media posts can hurt your divorce case if they contradict your financial claims, raise parenting concerns, or show conduct inconsistent with the position you are taking in court. Posts, photos, comments, and check-ins should be handled carefully during a contested divorce.
What is wasteful dissipation of assets in a NY divorce?
Wasteful dissipation involves using marital assets for purposes unrelated to the marriage, especially near the time of divorce. Examples may include gambling, spending marital funds on an extramarital relationship, or making secret transfers. If proven, the issue may affect equitable distribution.
Does it matter who files for divorce first in New York?
Filing first does not automatically determine property division, support, custody, or fault issues. It may give the filing spouse more control over timing and preparation, but the responding spouse can still answer the complaint and raise counterclaims, including fault-based claims when legally available.
Can my spouse use my mental health history against me in a NY divorce?
Mental health history by itself usually should not decide a New York divorce or custody case. In a custody dispute, the issue becomes more relevant if a condition affects parenting ability, safety, stability, or the child’s best interests. A diagnosis alone should not automatically control the outcome.
How does domestic violence affect divorce proceedings in New York?
Domestic violence can affect both fault allegations and custody issues in a New York divorce. It may support a cruel and inhuman treatment claim, and when proven in a custody dispute, the effect on the child’s best interests must be considered. Depending on the facts, domestic violence may affect custody, visitation, or protective orders.
