Legal Question in Family Law in New York
My daughter's husband is being unfaithful. They live in NY and have 2 children and another due in July. They have been to counselling but he continues his behavour. Would it be better for her to leave their home with the children or make him leave. I have always thought it would be considered abandonment if she left. Thank you in advance for your advise.
1 Answer from Attorneys
Either way works if she is planning on filing a divorce case based on adultery. In fact, it is required because to prosecute a divorce action for adultery, she cannot still be living with him. Also, keep in mind that this must happen right away, because you cannot maintain a divorce for adultery if you are still living together after you discovered the adultery (this would constitute your forgiveness and acceptance of his behavior). In any event, adultery is not easy to prove... his admission is not enough. You will need the corroboration of a third party witness to the adultery via a signed affidavit.
On the other hand, if she moves out, or forces him out, she can never file a case based on abandonment.
Be very careful how you proceed. I strongly suggest you contact a lawyer in your area to discuss.
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