How Does Adultery Affect My Divorce?
The initial way that an affair (or as divorce lawyers refer to as adultery) can affect a marriage is when a spouse decides to file a Complaint for Divorce in the Family Part of the Superior Court of New Jersey. New Jersey is a no-fault state that means that you are entitled to seek a divorce under Irreconcilable differences rather than requiring that you prove that your spouse is at “fault.” The attorneys at our East Brunswick, New Jersey law firm are well versed at helping those who have been betrayed.
While it is common for a spouse to cite marital misconduct as a reason for divorce, typically divorces settle under the irreconcilable differences count because it does not require proof or admission of wrongdoing. New Jersey law provides for several behaviors that would be considered marital misconduct including Adultery, Extreme cruelty (such as physical or mental abuse), Willful desertion (abandonment), Drug addiction or mental illness, Imprisonment, and Criminal Sexual Activity.
There are few harder things to recover from in life than the emotional turmoil experienced from the sense of betrayal that results in learning that your partner had an affair. As a divorce attorney, one of the most commonly asked questions is how will my or my partner’s infidelity or adultery affect our divorce?
If a spouse chooses adultery as the cause of action, they will be asked to name the affair participant and often will need to include them in the divorce complaint. Typically, the Court will require details regarding dates and places associated with the infidelity. The affair participant will have to be served a copy of the complaint, will have the opportunity to hire an attorney and respond, and will be able to appear in Court.
While it may seem satisfying to drag the affair participant into Court and to force your spouse’s dirty laundry to be aired to the Judge, the reality of the situation is that even if you were to go to the trouble and expense of proving adultery, typically it will have very little effect on what the ultimate outcome of the divorce is. Meaning the investment often is not worth the payout because proving your spouse wronged you does not typically have much bearing on what you are entitled to in equitable distribution (splitting up of your stuff.)
In fact, it is rate that an extramarital affair would play a role in dividing property or determining the amount of alimony that will be offered. However, there are some rare cases where the Court will rule differently, especially if an affair is proven to have had an adverse effect on the couple’s finances. One example would be if a spouse was hiding money through their new boyfriend or girlfriend in an attempt to hide marital assets. Or, suppose that one spouse used marital funds to purchase extravagant gifts or trips for the affair partner. A Judge may decide that the value of those purchases or the money moved through the paramour should be included in the property division. Additionally, should one party have become financially dependent on their affair partner, and even moved into a home with them, that spouse may impact their right to alimony or be considered evidence of cohabitation.
Many clients are shocked to learn that an affair is likely to have no affect on child custody. New Jersey laws regarding child custody and child support list a number of factors to be considered by the Court when determining what is in the child’s best interest. However, none of these factors include adultery. There are some specific circumstances where the nature of the affair participant could affect child custody. For example, if a spouse begins a relationship with someone who is a convicted sex offender or child abuser, a court could decide that there is a risk to the children being exposed to the dangerous person and that custody should reflect that concern.
At the end of the day, while the specific circumstances of the affair may not specifically impact the outcome of the divorce, there is no question that the betrayal felt is certainly reason enough to want to end a marriage with a cheating spouse. Speaking with an attorney about how an affair will impact your marriage and divorce is critical to ensure that you and your family are protected.
If you or a loved one is facing a potential divorce, we are here to help.