Adultery is one of the most common causes of divorce in New Jersey. It can also make divorce incredibly fraught and complex, with emotions ruling the day instead of clear heads and rational thoughts. Sometimes, parties who divorce want to use the court system as a way of ‘getting back’ at their spouse, and dragging all their dirty laundry out for all to see. However, there is another way to handle the issues of adultery and divorce in New Jersey – through a ‘no fault’ divorce.
A no fault divorce is basically telling the court that you and your spouse can no longer get along. No one has to take the blame for the relationship falling apart, and it can help things go quicker. But, this choice isn’t for everyone, and sometimes individuals just need their day in court to move on. In these cases, a ‘fault’ divorce might be more appropriate. In these cases, one party has to prove the other’s misconduct which caused the divorce. Along with adultery, abandonment, abuse, or substance abuse can all be used as grounds for a fault divorce. Of course, due to the heavier burden of proof, litigation will be more costly and lengthy, so it’s important to think about your strategy before filing your divorce petition.
Despite this, one of the big advantages in filing a fault case for adultery and divorce in New Jersey used to be that judges get to look at whose fault it was in the break-up of the marriage when determining things like alimony and property division. Alimony, or spousal support, is what one spouse might pay to the other upon separation or divorce to ensure the other party can support themselves. In the past, only a fault divorce would allow a party to request alimony; luckily, things have progressed, and now that most people file for a no fault divorce, courts will rarely look to fault when determining whether alimony should be awarded. In New Jersey, the court will only consider crimes that have resulted in the death or serious bodily injury to their spouse (or attempts to do so). In other words, if one spouse has tried to kill the other, they will not be awarded alimony. The other time courts will consider adultery and divorce in New Jersey when determining alimony is if this adultery negatively affected the couple’s economic estate. So, for example, if a wife purchased her boyfriend an apartment in the city, this would have been a wasting of the assets and could be looked at when determining whether, and how much, alimony should be awarded.
Similarly, nowadays, when it comes to adultery and divorce in New Jersey, judges usually won’t consider this issue when it comes to property division, unless of course, the adulterer has also effected the state of the marital property, such as wasting assets, or spending too much money on the third party. So, the spouse who is not at fault might be able to receive a slightly higher percentage of the estate to make up for the money that was wasted. Sometimes, although rarely, courts will look at the behavior of the spouse who committed adultery if it was outrageous. There is not really any definition of this, but an example would be perhaps if the spouse and their girlfriend conspired to kill the wife. In fact, there are 14 different factors for a judge to consider when determining whether or not to award alimony, and adultery is not one of them. However, “any other factors which the court may deem relevant” is a factor, and gives judges wide discretion in deciding whether or not alimony should be used to affect alimony. Generally speaking, judges do not look at any adulterous behavior of the parties when awarding alimony.
Similarly, adultery will not typically affect any issues of custody in a divorce in New Jersey, unless there are some exceptional circumstances, such as if the new boyfriend or girlfriend is a sex offender, or consistently uses drugs or alcohol in the presence of the child. Of course, this is really more an issue of good parenting rather than whether someone should be punished simply for being an adulterer.
Overall, if you are the victim of an adulterous spouse, it will be helpful to seek out professional legal advice to determine the best strategy before you file your case. Unless the behavior was egregious, or you suspect that a good chunk of the estate was wasted on the estate, filing a ‘fault’ case may cause only more problems. It will potentially make your spouse upset or angry. It will most likely cause larger attorney’s fees, because you will have to prove the fault of the other party – meaning more discovery, more time and more cost. Of course, in the early stages, before you file, you can do a lot to gather evidence showing the adultery, such as phone records, text messages, and bank statements. If you have enough evidence preserved so that the work on the part of the attorney will be minimized, it might be worth considering to file a ‘fault’ divorce. However, ultimately, filing this kind of case will likely see little return on the investment, given the fact that New Jersey is now a no-fault state, and courts will typically not use adultery to affect the property or financial status of the parties, unless there has been a specific and significant impact on the value of the marital estate. This is also because property division really should be based on an equitable split, and alimony should assist the less wealthy spouse in maintaining their standard of living. Property division or alimony really should not be used as a punitive weapon during divorce.
Proceed with caution when pursuing a divorce based on fault grounds. These can be emotionally and financially draining, with very little reward as a result. It is often done when spouses need an avenue to vent and smear their spouse, although this is not the most constructive way to end a marriage, particularly when children are involved. Of course, the argument is, neither was adultery. However, two wrongs do not make a right.
If you have any questions about adultery and divorce in NJ, call the Law Offices Peter Van Aulen at (201) 845-7400 for a free 30 minute in office consultation.