If your spouse had an affair, you may assume that adultery will play a major role in your New Jersey divorce. I understand why.
Adultery can be devastating personally. And when someone comes into my office after discovering that a spouse has been unfaithful, it's perfectly understandable for that person to think the court should take what happened into account.
But emotionally important and legally important aren't always the same thing.
In New Jersey, adultery is still a legal ground for divorce. But in most divorce cases, the affair itself isn't going to determine who gets the house, how marital property is divided, whether someone receives alimony, or what happens with the children.
That surprises a lot of people.
Adultery Is Still a Ground for Divorce in New Jersey
New Jersey allows someone to file for divorce based upon adultery. But you don't necessarily have to use adultery as your ground for divorce simply because an affair occurred.
New Jersey also allows divorce based upon irreconcilable differences, which does not require you to prove that either spouse caused the marriage to fail.
Which ground makes sense depends upon the circumstances of your case. But don't assume that alleging adultery will automatically put you in a stronger financial position. Usually, it won't.
Does Adultery Affect Alimony?
Generally, marital fault doesn't determine alimony in New Jersey.
Alimony is primarily an economic issue. The court looks at factors such as the parties' needs, ability to pay, length of the marriage, marital standard of living, earning capacities and other financial circumstances.
There are limited situations in which misconduct can become relevant, particularly when it has had an economic impact on the marriage or involves extraordinarily serious conduct.
But an affair by itself generally doesn't mean that the unfaithful spouse automatically loses the right to receive alimony or becomes obligated to pay more. I learned that lesson very early in my career.
My First Adultery Case and "Mr. Sensitivity"
It was September 1987.
I was finishing my clerkship with the New Jersey Family Court and had just been hired by a very good law firm. The senior partner brought a potential client into my office, introduced us and left. My very first client.
At some point during our consultation, she asked me whether it would hurt her divorce case if her husband discovered that she had a boyfriend. I was a brand-new lawyer, and I didn't know the answer. So I told her the truth: "I don't know the answer to your question. But let's find out."
I walked back to the senior partner and explained what she had asked me. He stormed into my office, looked at the woman and said: "You could have sex with the entire New York Giants football team and it won't affect your husband's alimony obligation to you!" Then he turned around and walked back out.
He was a very knowledgeable lawyer. Sensitivity was not his strong point. The legal lesson, however, stuck with me. An affair can have enormous consequences for a marriage without necessarily having the financial consequences in divorce that people expect.
What About Marital Property?
Adultery doesn't ordinarily entitle the innocent spouse to a larger share of the marital property simply because the other spouse was unfaithful.
New Jersey uses equitable distribution to divide eligible marital property, and marital fault isn't one of the factors used to punish one spouse or reward the other. There is, however, an important distinction between the affair itself and what happened financially because of it.
Suppose a spouse spent substantial marital money on hotels, vacations, gifts or other expenses associated with an affair. Now we may have a financial issue worth investigating.
The question isn't simply whether your spouse cheated. The question may be whether marital assets were spent or dissipated in a way that should be addressed as part of the divorce.
Does an Affair Affect Child Custody?
Having an affair doesn't automatically make someone an unfit parent. New Jersey custody decisions are based upon the best interests of the child.
If conduct surrounding an affair actually affects the children, their safety, the stability of their home or another relevant custody consideration, those facts may matter.
But custody isn't supposed to be used to punish a husband or wife for being a bad spouse. Being unfaithful to your spouse and being an unfit parent are two very different questions.
Don't Let the Affair Control Your Divorce Strategy
This may be the hardest part. When someone has betrayed you, it's natural to be angry. You may want your spouse held accountable for what happened. But a divorce case isn't designed to provide emotional justice for every wrong that occurred during a marriage.
That's why I want my clients to separate two questions: What happened in my marriage? And: What actually matters in my divorce case?
Sometimes the answers overlap. Often they don't.
Understanding that distinction can save you from spending enormous amounts of time, money and emotional energy trying to prove something that ultimately has very little effect on the legal issues the court has to decide.
If your spouse had an affair, tell your divorce lawyer what happened. Tell your lawyer if marital money was spent, if the conduct affected your children, or if there are other circumstances that could be legally significant. Then let the facts determine how important the affair actually is to your case.
If you're trying to understand adultery, custody, alimony, property division and the other issues you may face during a New Jersey divorce, my free Divorce Smarter Course will help you understand the process before making important decisions.
Until next time,
Steve