If you're facing the end of your marriage because you or your spouse had an extramarital affair, you may be wondering whether the infidelity could affect what happens in your divorce case. When you live in New Jersey, you have the option of filing for divorce based on your spouse's adultery. Then, if you can prove that claim, it might affect a decision regarding alimony. But there are several other considerations that go into those decisions.
In New Jersey, as in all states, you need a legally accepted reason (or "ground") to get a divorce. The grounds for divorce in New Jersey include both fault and no-fault reasons. Among the fault-based grounds, you may get a divorce if the judge finds that your spouse has committed adultery. (N. J. Stat. § 2A:34-2(a) (2022).)
If you file for divorce in New Jersey based on your spouse's adultery, you'll need to prove that claim. Circumstantial evidence, such as hotel receipts, phone records, emails, texts, and photos may be sufficient. In other words, you don't need to provide direct evidence of the actual sexual encounters.
Showing that your spouse was disposed toward adultery—and had the opportunity to follow through on that disposition—will go a long way toward proving your case. For example, if your spouse was seen kissing someone else in public, that might be evidence of being disposed toward adultery. Opportunity is rather clear-cut when there's witness testimony or webcam evidence that your spouse went inside an alleged paramour's home in the evening and didn't leave until the next morning.
Unlike some other states, New Jersey law no longer allows you to defend yourself against an adultery claim by arguing that your spouse also had an extramarital affair or tacitly accepted the adultery by continuing to live with you after learning of the affair. (N. J. Stat. § 2A:34-7 (2022).)
An award of alimony in a New Jersey divorce isn't automatic. A judge has to determine that it's warranted under the circumstances of each case.
New Jersey law requires judges to consider a long list of factors when they're deciding whether to award alimony, as well as the amount and how long the payments should last. The list doesn't include adultery or fault in general. (N. J. Stat. § 2A:34-23(b) (2022).)
However, the law also says that—except for divorces based on the no-fault ground of an 18-month separation—when judges are deciding how much alimony to award, they may look at the evidence that spouses have presented to support other grounds for divorce. (N. J. Stat. § 2A:34-23(g) (2022).) Based on that, it would seem that adultery could play a role in the amount of alimony.
But the statute doesn't really give much guidance on how to gauge the impact of fault on an alimony award. To rectify that, the New Jersey Supreme Court took up the issue in the case of Mani v. Mani, 183 N.J. 70 (N.J. Sup. Ct. 2005). The court held that fault doesn't play a role in alimony award, except when:
So how does adultery fit in under this guidance? Let's say the cheating spouse drains the couple's savings, using the funds to finance the affair with lavish trips, gifts, or even providing support for the paramour. Because those actions would affect the spouses' finances, the judge may compensate the innocent spouse by ordering the unfaithful spouse to pay more in alimony.
The exception for egregious conduct probably wouldn't apply to adultery. It's reserved for outrageous, awful behavior. New Jersey law addresses some examples of egregious behavior that would rule out an alimony award to the guilty spouse, including murder, manslaughter, or aggravated assault that's committed during the marriage and results in death or serious injury to either spouse's family member. (N. J. Stat.§ 2A:34-23(i) (2022).)
New Jersey is an "equitable distribution" state. This means judges will divide the couple's property in a way they believe is fair under the particular facts of each case. It's important to point out that "equitable" doesn't necessarily mean a 50-50 split.
When judges are deciding on a fair division of marital property in a New Jersey divorce, they must consider various factors (many of which are the same as the factors impacting alimony). General marital fault isn't listed as one of those factors, although the law does say that a spouse convicted of an attempt or conspiracy to murder the other spouse isn't entitled to an equitable property division. (N. J. Stat.§ 2A:34-23(h) (2022).)
However, judges are authorized to consider a spouse's dissipation (misuse or squandering) of assets in the property division. (N. J. Stat. § 2A: 4-23.1(i) (2022).) Much as with alimony, this could open the door for adultery to make its presence felt. A cheating spouse who dipped into marital assets to finance the affair has reduced the property pool available for distribution, adding injury to insult for the innocent spouse. The judge may take that into consideration by awarding the "innocent spouse" a greater share of the assets.
Decisions about child custody and parenting time (visitation) in New Jersey, as in all states, must be based on what would be in the children's best interests. New Jersey law spells out the factors judges must consider when they making custody decisions, including the parents' fitness. But parents won't be considered unfit unless their conduct substantially harms the child. (N. J. Stat. § 9:2-4(c) (2022).)
So how does adultery enter into the mix, if at all? Some people might argue that having an affair is a moral failing, or at least shows a lack of judgment. But the real question is whether that impacts the adulterer's ability to be a good parent. In most cases, it probably doesn't. So adultery probably won't affect a judge's decision about the parenting arrangements. This is especially true given New Jersey's explicit public policy of ensuring that children have "frequent and continuing contact" with both parents after divorce. (N. J. Stat. § 9:2-4 (2022).)
Still, there might be some extreme situations where a parent's adultery could endanger the child's well-being—for instance, if the extramarital relationship involved exposing the child to abusive behavior, or if a parent became completely uninvolved in the child's life because of that relationship.
Child support in New Jersey is calculated under a formula spelled out in the state's child support guidelines. The formula is based primarily on the income of the parents, the number of children being supported, the amount of time the children spend with each parent, and items like the cost of health insurance and childcare. Typically, the more time a child stays with a parent, the less child support the parent would have to pay, because that parent is already spending money on the child during parenting time.
Either parent's adultery would usually not play a role in determining which of them will pay child support or the amount of the payments. That's because the support payments are meant for the children's needs—not as a reward or punishment for parental behavior. However, in those rare situations (discussed above) when the circumstances around the adultery led a judge to limit the amount of time that parent spends with the child, because of concerns about the child's well-being, that might mean that the cheating parent would have to pay more children support than would be owed under a less restricted custody/parenting time arrangement.
No, adultery isn't considered a crime in New Jersey.
Many people find it devastating to discover that their spouse has had an extramarital affair. But if you've decided to end your marriage as a result, you should know that it's not a good idea to try to use the divorce proceedings to punish your spouse. It's bound to increase the cost of divorce, and it will make the entire process more stressful, for you as well as your kids. It also means that you wouldn't be able to get an uncontested divorce in New Jersey, which is almost always a lot quicker, easier, and cheaper than a traditional contested divorce.
Despite these drawbacks, if you think that filing for divorce based on your spouse's adultery might benefit you, you should speak with a lawyer. A local, experienced family law attorney should be able to evaluate your case and explain whether it will be in your interest to file for a fault-based divorce. And if you ultimately decide to take that route, it's critical to have a lawyer prepare and present the kind of evidence you'll need to prove your claims and convince a judge that your spouse's adultery should affect decisions about alimony, custody, or property division. (Here are some tips on questions to ask before you hire a divorce lawyer.)
Similarly, if you're the one being accused of adultery in a fault-based divorce, you'll almost certainly need a lawyer to protect your interests and get a fair result—whether or not you actually had an extramarital affair.