Adultery in New Jersey: Does Cheating Affect Alimony?

Learn whether an extramarital affair can impact spousal support in New Jersey.

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Alimony, which is also called “spousal support” or “maintenance,” is money one spouse pays to the other during divorce proceedings or following a final judgment of divorce. Each state requires judges to apply somewhat different rules when deciding whether to grant alimony, how much to award, and for how long.

In New Jersey, a court might order “permanent” or “durational” alimony (alimony having a pre-set term) to a spouse who depended on the other spouse’s income for support during marriage. Courts may also award “rehabilitative” alimony to a spouse who needs training or education to return to the job market, or “reimbursement” alimony to a spouse who paid tuition or living expenses so the other spouse could receive an advanced education. Finally, a judge may order one spouse to pay “temporary” alimony to a low-earning or unemployed spouse during the divorce.

When making decisions about alimony, courts will consider many factors, including the length of the marriage, the standard of living during the marriage, each spouse’s age and health, and the financial resources each spouse expects to have after marriage.

For a complete list of factors and a more in-depth explanation of how New Jersey judges make alimony decisions, see Understanding and Calculating Alimony in New Jersey, by Yan Wen Fei.

Does Adultery Affect an Alimony Award in New Jersey?

Until fairly recently, spouses seeking a divorce in New Jersey had to pursue a “fault” divorce, and claim that the other spouse’s misconduct (eg., adultery, abandonment, extreme physical or mental cruelty, or drug abuse) led to the breakdown of the marriage. Adultery was often used as a fault ground, and courts considered evidence of adultery when awarding alimony.

Today, things have changed. Now, the great majority of spouses that file for divorce in New Jersey choose a “no-fault” ground. Keeping fault out of the equation helps couples avoid the intense conflict that arises when they air their dirty laundry in divorce court.

The most commonly used no-fault ground in New Jersey is “irreconcilable differences,” which is just a fancy way of saying the couple can’t get along. A spouse filing for divorce based on irreconcilable differences can simply state that there has been a breakdown in the marriage for at least the past 6 months, and there is no reasonable possibility of reconciliation. Neither spouse has to provide information about what led to the divorce.

New Jersey couples can also choose the no-fault ground of “separation,” which has been available longer than irreconcilable differences. But, this requires spouses to have been separated for at least 18 consecutive months before filing for divorce.

Although a few states still consider marital fault when deciding whether a spouse is entitled to alimony, there is a growing trend against this. Some states don’t consider fault at all. In New Jersey, courts consider it only in a few limited situations. A person convicted of murder, manslaughter, criminal homicide, or aggravated assault under New Jersey law, or a similar offense in another state or country, can’t receive alimony if the crime resulted in death or serious bodily injury to either spouse’s family member. A person convicted of attempting or conspiring to commit murder can’t receive alimony from the intended victim.

Other bad acts during marriage, including adultery, may affect an alimony award, but only if the behavior negatively affected the couple’s economic situation (eg., where a spouse used substantial marital assets to buy gifts for his or her lover), or where the misconduct was so bad that an ordinary person would recoil from the idea of the innocent spouse being forced to support the guilty one.

Although most people find the idea of adultery distasteful, it will not, by itself, automatically bar alimony: it will generally be a factor only in the presence of additional bad behavior. So, following our above example, if one spouse spent a lot of money supporting a paramour, the adultery itself would not affect alimony; but the fact that the married couple’s savings disappeared might. Or, if one spouse contributed little to the marriage and also had multiple affairs, the combination of circumstances might amount to behavior shocking enough for a judge to consider it when making an alimony decision.

Does Adultery Affect Property Division?

Typically, a judge dividing marital property in a New Jersey divorce will not consider infidelity when deciding who gets what. In rare cases, however, adultery could indirectly affect the equitable distribution of property. Courts can consider dissipation (waste) of assets, so if one spouse spent a large portion of marital funds on an adulterous relationship, this might have an impact on how a judge divides assets between spouses in a divorce; the innocent spouse may receive a greater amount of assets than the cheating spouse in order to make up for the misused funds.

A court could also consider adulterous behavior that was part of a pattern of behavior so extremely wrongful that ignoring it would be unconscionable (outrageous). While judge’s have the power to decide exactly what “extremely wrongful” means in this context, behavior shocking enough to affect property division would generally have to be something along the lines of attempted murder of the other spouse.

Does Adultery Affect Child Custody?

Infidelity will not affect a custody decision in New Jersey unless the unfaithful spouse exposes the children to someone who is dangerous or who might affect them negatively. For example, if one parent allows an alcoholic or a sex offender to spend time in the home, this could affect that parent’s custody or visitation rights, regardless of the exact nature of the relationship with the objectionable person.

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