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The Five Shocking Truths About New York's Adultery Law Repeal: Is Cheating Finally 'Legal'?

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The landscape of marriage and infidelity in New York State has been fundamentally reshaped. As of late 2024, Governor Kathy Hochul officially signed a bill into law that repealed the state's antiquated 1907 statute criminalizing adultery, effectively removing a 117-year-old Class B misdemeanor from the books. This landmark legislative move, which took effect in November 2024, ends a long era where cheating on a spouse, though rarely prosecuted, technically carried the penalty of up to 90 days in jail.

This repeal is not merely a symbolic gesture; it reflects a significant shift in legal and social perspectives, redefining the state's role in policing private, consensual sexual conduct between adults. While the criminal penalty is gone, the legal and financial implications of infidelity in divorce court remain a critical consideration for New Yorkers, leading to widespread confusion about what the word "legal" now truly means in this context.

The Complete Breakdown of the Repealed 1907 Adultery Statute

The law in question, which was Section 255.17 of the New York Penal Law, defined adultery as "sexual intercourse between a person and any other person who is not the spouse of either the participant or the other person." It was a legal relic from a bygone era, reflecting societal values and moral codes of the early 20th century that are no longer aligned with modern sensibilities.

  • Original Statute: Section 255.17 of the New York Penal Law.
  • Year Enacted: 1907.
  • Criminal Classification: Class B Misdemeanor.
  • Maximum Penalty: Up to 90 days in jail or a fine of up to $500.
  • Repeal Bill: Senate Bill S8744 / Assembly Bill A8156.
  • Key Sponsor: Assemblymember Charles Lavine.
  • Date Signed into Law: November 2024 (Signed by Governor Kathy Hochul).

The statute was notorious for being almost entirely unenforced. Legal experts and law enforcement often treated the law as obsolete, an embarrassing piece of legislation that was difficult to prosecute and rarely led to any actual jail time. The last reported prosecution for adultery in New York State occurred decades ago, highlighting its irrelevance in the modern justice system.

Why Did New York Finally Repeal the Adultery Law?

The primary motivation behind the repeal was the need to modernize the state's penal code and eliminate outdated, "silly," and unenforceable laws. Governor Hochul and legislative sponsors, including Assemblymember Charles Lavine, argued that the government should not be involved in criminalizing private, consensual relationships between adults.

The Stigma of an Unenforced Crime. Even though prosecutions were non-existent, the mere existence of the law meant that a person could technically be charged for adultery. This created a legal vulnerability and an unnecessary burden on the legal system. The law was a moral statement, not a tool for justice.

Focusing Judicial Resources. By removing the statute, the state can dedicate its judicial and law enforcement resources to serious crimes that pose a genuine threat to public safety. Legislative efforts across the country are increasingly focused on decriminalizing outdated statutes that clog up the courts without serving a modern purpose.

Social and Cultural Evolution. Society’s view on marriage and infidelity has changed dramatically since 1907. What was once seen as a grievous public offense is now largely considered a private matter, an issue of marital contract and personal morality, not a criminal one. The repeal aligns New York with the majority of US states that have already decriminalized adultery.

The Critical Impact on New York Divorce Proceedings

A crucial misconception following the repeal is that adultery no longer matters in a New York divorce. This is unequivocally false. While the act of infidelity is no longer a crime, it remains a powerful factor in civil court. The repeal only addresses the *criminal* nature of the act, leaving the *civil* implications entirely intact.

Adultery Remains a "Fault" Ground for Divorce

In New York, a person seeking to dissolve their marriage can file for a "no-fault" divorce, citing an irretrievable breakdown of the marriage for a period of at least six months. However, the state also retains "fault" grounds, and adultery is one of the most common and powerful of these grounds.

Filing for divorce on the grounds of adultery requires the plaintiff to prove the spouse engaged in sexual intercourse with a third party. This can be a complex and emotionally charged process, but it allows the wronged spouse to bring the matter before the court as the official reason for the marriage's dissolution.

The Financial Weapon: Marital Waste

Perhaps the most significant financial consequence of infidelity in a New York divorce is the concept of "Marital Waste." This legal doctrine is completely separate from the criminal statute and remains fully applicable after the repeal.

Marital waste refers to the improper dissipation or squandering of marital assets for non-marital purposes. In cases of infidelity, this often involves a spouse spending a significant amount of marital funds on an affair. Examples of marital waste include:

  • Buying expensive gifts, jewelry, or cars for the paramour.
  • Paying for lavish trips, hotels, or rental properties.
  • Spending marital funds on a second apartment or home for the affair.
  • Excessive spending on dining, entertainment, or other expenses directly related to the affair.

A judge has the discretion to penalize the cheating spouse by adjusting the equitable distribution of marital assets to compensate the non-offending spouse for the wasted funds. This financial impact can be substantial and is the true legal consequence of infidelity that New Yorkers should be aware of, far outweighing the threat of the old misdemeanor charge.

The National Context: Adultery Laws Across the United States

New York’s repeal places it firmly on the side of modern legal reform, but it highlights that adultery remains a criminal offense in several other US states. This patchwork of laws across the nation demonstrates the ongoing tension between private morality and public law. States that still criminalize adultery include:

  • Michigan: Adultery is a felony punishable by up to four years in prison and a $5,000 fine.
  • Massachusetts: Adultery remains a criminal offense, though rarely enforced.
  • Oklahoma: Adultery is a felony, punishable by up to five years in prison.
  • Wisconsin: Adultery is a Class I felony.
  • Idaho: Adultery is a misdemeanor.

These remaining statutes, much like New York’s former law, are rarely, if ever, prosecuted. Their continued existence is often attributed to legislative inertia and a historical reluctance to remove moralistic statutes from the penal code. The successful repeal in New York State provides a powerful precedent for other states to follow, pushing for the complete decriminalization of private, consensual sexual conduct and focusing the legal system on modern challenges.

The repeal of the 1907 adultery law is a clear signal that New York is moving away from moralistic criminal statutes. However, the key takeaway for married individuals remains: while you won't go to jail for cheating, the financial and emotional consequences in the civil court of a New York divorce are as real and severe as ever. The law has changed, but the concept of "fault" and "marital waste" ensures that infidelity still carries a heavy legal price tag.

The Five Shocking Truths About New York's Adultery Law Repeal: Is Cheating Finally 'Legal'?
new york repeals 1907 adultery law
new york repeals 1907 adultery law

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