Adultery, Fault Divorce, and Morals: A Complex Cocktail

New York Law Journal

Physics teaches us that to achieve equilibrium, three forces must intersect at one point, thereby achieving balance. There are at this very moment three forces playing out before us involving the intersection of (1) divorce laws, (2) morality judgments, and (3) ancient and damaging cultural expectations that continue to permeate American culture.

The first force, divorce laws, has captured recent attention in New York. New York is on the cusp of repealing its century old statute that criminalizes adultery, which remains on the books in the Domestic Relations Law as a ground for fault-based divorce. The New York State Senate approved a bill that would decriminalize the act of adultery, however that bill remains to be signed by our governor. Perhaps, when this article is released, the stroke of the pen will have happened.

As one Democratic assemblyman in New York stated, “When you consider in that period of time there have been multiple millions of instances of adultery in the state of New York—it certainly doesn’t serve as much of a deterrent.”

The second force, morality judgments, are individualized moral convictions as to what is “right” versus “wrong,” and those convictions are being used, in states such as Louisiana and Texas, to try to eliminate unilateral, no-fault divorce. The 2022 Texas Republican Party Platform states “We urge the Legislature to rescind unilateral no-fault divorce laws and support covenant marriage and to pass legislation extending the period of time in which a divorce may occur to six months after the date of filing for divorce.” Efforts to strike down no-fault divorce are the subject of Professor Kimberly Wehle’s article in The Atlantic, titled “The Coming Attack on an Essential Element of Women’s Freedom.”

The final force is defined by tropes that are being used in the context of criminal proceedings. This force played out in extremis in the matter of Brenda Evers Andrew v. Tamika White, where Andrew, convicted of murdering her husband by an Oklahoma jury, has petitioned for a writ of certiorari to the U.S. Supreme Court following the jury’s decision to sentence her to death.

Andrew’s death sentence, as argued in an amici curiae brief submitted by a former federal judge, 17 law professors, four domestic violence researchers and others, was premised upon the “prosecution’s invocation of gender bias…with multiple witnesses seemingly called for the sole purpose of labeling her a temptress, an adulteress, and an unfit mother.”

The brief describes how the prosecution elicited testimony from a witness that “good mother[s]” don’t have affairs, that Andrew wore “revealing clothing to a restaurant” and introduced “reams of inflammatory evidence about Ms. Andrew’s sexuality.” This emphasis on “Ms. Andrew’s sexuality,” the brief argues, “had no bearing on her guilt or innocence in the case against her.”

To further support the amici curiae brief’s position, the brief notes that the “New York Court of Appeals recently described prosecutorial attempts to present female witnesses as promiscuous to damage their credibility as a tactical attack based on now-rejected views of female sexuality.” People v. Cerda, 223 N.E.3d 308, 315 (N.Y. 2023). The brief concludes, in part, as follows: “By capitalizing on deeply ingrained biases against women whose conduct deviates from the stereotype of an ideal wife and mother, prosecutors strategically turned the trial on Ms. Andrew’s guilt or innocence into a referendum on Ms. Andrew’s femininity and morality.” The Inter-American Commission on Human Rights issued a resolution on Feb. 26, 2024, whereby it granted precautionary measures in favor of Andrew, deeming her to be in a serious and urgent situation presenting a risk of irreparable harm to her rights.

Is it possible to achieve equilibrium between these three forces? Anything is possible, as the saying goes. Yet, while I hate to crash New York’s party over the potential undoing of its 1907 adultery penal law, fault divorce on the grounds of, for example, “constructive abandonment” still lives under the guise of New York’s statutory divorce scheme, i.e., entitlement to divorce based upon the claim that one spouse unjustifiably rejected the other spouse’s sexual advances for a period of one year despite what courts have referred to as “repeated requests.”

While fault divorce is rarely invoked following New York’s codification of no-fault divorce in 2010, the fact that constructive abandonment remains in place reminds us that New York’s divorce laws are still, for reasons this author cannot understand, stuck in a time warp.

I am reminded of Retired Judge Matthew Cooper’s decision from December 2009—nearly 15 years ago—in the matter of Andrew T. v. Yana T., 2009 NY Slip Op 29530 (Sup. Ct., N.Y. Cty. 2009). That decision—which at that time described “constructive abandonment” as “the ground of choice in uncontested divorce proceedings” —stated the following:

Unfortunately, our state, which prides itself on being so forward-thinking in so many ways, is positively regressive as concerns the institution of marriage… When it comes to dissolving the marriage bond, we do not allow no-longer-loving, consenting adults to obtain a divorce for reasons that are real rather than fabricated so as to meet some archaic legal requirement. It is clearly time for the Empire State, as it is known, to reject a view of marriage that is more reflective of the time of the Empire of Queen Victoria than it is of the second decade of the twenty-first century and at long last adopt the reforms that bar associations and citizens groups of all kinds have been demanding for years. Until that happens, the integrity of our legal system here in New York will continue to be needlessly compromised.

You may be asking: if fault divorce in New York is hardly ever deployed, does any of this really matter? Yes, it does. First, as divorce lawyers, we should not applaud a system that allows for even the remote possibility of a fault-based divorce claim being used as a weapon that can, in turn, wreak havoc on a family, not to mention unnecessarily escalate legal fees. Second, while Chinese philosophy may be fascinating, I’m at a loss to understand why a statutory framework that personifies the yin-yang is something to write home about, particularly when that dualism creates a runway for reinforcing tropes. In the Andrew case, such tropes may have life or death consequences.

"Adultery, Fault Divorce, and Morals: A Complex Cocktail," by Alan R. Feigenbaum was published in the New York Law Journal on May 1, 2024.

Reprinted with permission from the May 1, 2024, edition of the New York Law Journal © 2024 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited.