My wife confesed to me that she cheated on me by kissing another man. Can this be considered committing adultery?
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My wife confesed to me that she cheated on me by kissing another man. Can this be considered committing adultery?
I have checked cell phone records and found numerous calls at all our of the day to this specific someone. She never told me about him.
Asked on March 25, 2009 under Family Law, New York
Answers:
S.J.H., Member, New York Bar / FreeAdvice Contributing Attorney
Answered 15 years ago | Contributor
In and of itself, mere kissing, without more contacting does not rise to adultery in the State of New York for purposes of obtaining a divorce. It usually needs to be intercourse or oral or anal sex in order for adultery to be found. Now, if the kissing became more intimate but did not technically rise to the level described above, it would be in the discretion of the Judge as to whether sexual contact was made. However, if you wanted to use the kissing as a grounds for divorce, you could clearly claim that this was part of cruel and inhuman treatment that caused great embarrassmnet and humiliation that made it unsafe and improper for you to continue to live as husband and wife
MD, Member, California Bar / FreeAdvice Contributing Attorney
Answered 15 years ago | Contributor
This would be a question for the court. Why don't you check out the definitions below.
§ 170. Action for divorce. An action for divorce may be maintained by
a husband or wife to procure a judgment divorcing the parties and
dissolving the marriage on any of the following grounds:
4) The commission of an act of adultery, provided that adultery for
the purposes of articles ten, eleven, and eleven-A of this chapter, is
hereby defined as the commission of an act of sexual intercourse, oral
sexual conduct or anal sexual conduct, voluntarily performed by the
defendant, with a person other than the plaintiff after the marriage of
plaintiff and defendant. Oral sexual conduct and anal sexual conduct
include, but are not limited to, sexual conduct as defined in
subdivision two of section 130.00 and subdivision three of section
130.20 of the penal law.
§ 130.00 Sex offenses; definitions of terms.
The following definitions are applicable to this article:
1. "Sexual intercourse" has its ordinary meaning and occurs upon any
penetration, however slight.
2. (a) "Oral sexual conduct" means conduct between persons consisting
of contact between the mouth and the penis, the mouth and the anus, or
the mouth and the vulva or vagina.
(b) "Anal sexual conduct" means conduct between persons consisting of
contact between the penis and anus.
3. "Sexual contact" means any touching of the sexual or other intimate
parts of a person not married to the actor for the purpose of gratifying
sexual desire of either party. It includes the touching of the actor by
the victim, as well as the touching of the victim by the actor, whether
directly or through clothing.
4. For the purposes of this article "married" means the existence of
the relationship between the actor and the victim as spouses which is
recognized by law at the time the actor commits an offense proscribed by
this article against the victim.
10. "Sexual conduct" means sexual intercourse, oral sexual conduct,
anal sexual conduct, aggravated sexual contact, or sexual contact.
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