As a New Jersey divorce attorney, I get a lot of questions about adultery. Usually, the question underneath them is the same: Will the court punish my spouse for cheating?
In most New Jersey divorces, the answer is no. Adultery generally does not increase, reduce, or eliminate alimony simply because one spouse was unfaithful.
A lot of people find that unfair. I understand. But the emotional importance of adultery and its legal importance in a divorce are often two very different things.
Alimony is primarily about finances, not punishment. When determining whether alimony is appropriate, how much should be paid, and how long it should continue, New Jersey courts consider factors involving the spouses' financial circumstances and the marriage itself.
Those factors include the length of the marriage, the marital standard of living, each spouse's income and earning capacity, financial needs, age and health, parenting responsibilities, time spent outside the workforce, contributions to the marriage, and the division of marital property.
Whether one spouse had an affair is generally not part of that financial analysis. New Jersey courts do not ordinarily use alimony to punish the spouse who cheated or reward the spouse who remained faithful.
There is an important distinction between the affair itself and what a spouse did financially during the affair.
Suppose your spouse spent substantial marital money on hotel rooms, vacations, gifts, rent, entertainment, or other expenses connected to another relationship. The issue is no longer simply that your spouse cheated. The issue may be that marital assets were spent or depleted for purposes unrelated to the marriage.
Depending on the circumstances, that spending may become relevant when marital property is divided.
The same is true if an affair leads you to discover hidden accounts, unexplained transfers, undisclosed credit cards, or other questionable financial activity. Those facts may matter even though the adultery itself does not determine alimony.
There are limited circumstances in which marital misconduct can become relevant to alimony in New Jersey. Those cases generally involve conduct with a significant economic impact or conduct so extreme that requiring continued financial support would raise serious questions of fairness.
That is a very different standard from ordinary adultery.
An affair can be extraordinarily painful and still not rise to the level of misconduct that changes an alimony determination. That distinction is important before you spend significant time or money trying to prove infidelity for purposes of your divorce case.
Having an affair does not automatically make someone an unfit parent. New Jersey custody decisions focus on the best interests of the children, not on punishing either parent for what happened in the marriage.
The circumstances surrounding an affair could become relevant, however, if they directly affected the children. For example, there may be a legitimate custody issue if a parent repeatedly neglected parenting responsibilities, exposed the children to unsafe situations, left them without appropriate supervision, or involved them in deception or conflict surrounding the affair.
Again, the distinction matters. The question is not simply whether your spouse cheated. The question is how the conduct affected the children.
When someone suspects an affair, the instinct can be to prove it. Before spending thousands of dollars investigating your spouse, ask a more practical question: What am I going to do with the information if I get it?
Proof that your spouse had an affair may have little effect on alimony, custody, or the division of your property. Evidence of hidden assets, misuse of marital money, false financial disclosures, or conduct that endangered your children is a different matter.
Talk to your attorney about what information would actually be useful before you start an expensive investigation. And do not access private accounts without authorization, install tracking devices, trespass, impersonate someone, or use other potentially unlawful methods to gather evidence.
Discovering that your spouse has been unfaithful can be devastating. The fact that a court generally does not punish adultery through alimony does not make the betrayal any less real.
But divorce requires you to separate the emotional issues from the legal ones.
If you are going through a New Jersey divorce involving adultery, focus on the facts that can actually affect the outcome: your financial circumstances, the marital standard of living, your children's needs, the division of your property, any questionable use of marital funds, and what you need your life to look like when the divorce is over.
Understanding that distinction can prevent you from spending enormous amounts of time, money, and emotional energy proving something that may ultimately have very little effect on your case.
If you are considering divorce and want to understand issues like alimony, custody, property division, and settlement before making major decisions, my free Divorce Smarter Course explains the New Jersey divorce process in plain English.
Until next time,
Steve