Adultery in New Jersey: Does Cheating Affect Alimony?

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

Updated by , Attorney

New Jersey Divorce Basics

In New Jersey, you can request a no-fault divorce or a fault-based divorce. A no-fault divorce (available in every state) is a way to end your marriage without pointing fingers at either spouse for the divorce. When you file a no-fault divorce in New Jersey, you only need to tell the court that you and your spouse have experienced irreconcilable differences for at least six months and that there's no chance you can reconcile. (N.J. Stat. Ann. § 2A: 34-2 (i).)

New Jersey couples can also choose the ground of "separation," which has been available longer than irreconcilable differences. Separation is not the classic no-fault divorce, but it also avoids any finger pointing or placing blame. It requires spouses to live separate and apart for at least 18 consecutive months before filing for divorce (triple the amount of time than irreconcilable differences.)

In a few states, including New Jersey, divorcing spouses can file a "fault" divorce, which is where one spouse blames the other's misconduct during the marriage as the sole reason for the divorce. It's not enough in a fault divorce to tell the court the reason you want a divorce. You'll also need to prove the action and that it's the reason you're asking for the divorce. For example, if you'd like to divorce because your spouse cheated on you, you'll need to list adultery as the "legal grounds" for your request, and then you'll need to prove your spouse cheated and that the cheating caused the breakup.

A fault divorce is significantly more complex than filing a no-fault divorce. It's not enough to tell the court your spouse cheated on you. Instead, you'll need to introduce witnesses, credit card or bank statements, emails, videos, phone calls, and anything else that will prove your allegations. Introducing evidence in court requires knowledge and experience in the law, so you'll likely need to hire an attorney, which can get expensive. In most divorces, the cost and time it takes to go through the fault divorce process are rarely worth the gratification of blaming your spouse for the divorce.

If you're not sure which method is best for your case, speak with an attorney near you before you file.

What Is Alimony?

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. (N.J. Stat. Ann. § 2A: 34-23.)

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.

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 (e.g., adultery, abandonment, extreme physical or mental cruelty, or drug abuse) led to the breakdown of the marriage. Adultery was one of the most common fault grounds, and courts considered evidence of infidelity 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.

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. (N.J. Stat. Ann. § 2A: 34-23 (i).)

Other bad acts during the marriage, including adultery, may affect an alimony award, but only if the behavior negatively impacted the couple's economic situation (e.g., where a spouse used substantial marital assets to buy gifts for a lover). Or where the misconduct was so bad that an ordinary person would recoil from the idea of the court requiring the innocent spouse 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. If one spouse contributed little to the marriage and 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, it might impact 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. (N.J. Stat. Ann. § 2A: 34-23.1 (i).)

A court could also consider adulterous behavior that was part of a behavior pattern so extremely wrongful that ignoring it would be unconscionable (outrageous). While judges 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. (N.J. Stat. Ann. § 2A: 34-23.1 (p).)

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, suppose one parent allows an alcoholic or a sex offender to spend time in the home. In that case, it could affect that parent's custody or visitation rights, regardless of the exact nature of the relationship with the objectionable person.