What Are Your Rights if Your Spouse Committed Adultery?

Adultery is the classic grounds for divorce. One spouse has an affair, either briefly or for an extended period of time, and the other spouse catches them in the act. The innocent spouse files for divorce based on adultery, looking both to separate from a disloyal spouse and to recover for the emotional, social, and other damage caused by the affair. As no-fault divorce has become the most common form of divorce across the country, however, allegations of adultery have fallen out of favor. If your spouse commits adultery, what are your legal rights? Read on to learn about adultery and divorce, and call an experienced New Jersey divorce attorney if you need assistance with a New Jersey divorce or other matter of New Jersey family law.

There Are No New Jersey Laws Punishing Adultery

To briefly dispel any thoughts of liability directly tied to cheating: New Jersey does not punish adultery. There is no crime of adultery, and there is no longer a cause of action in civil court based on adultery. In some states, a cheated-on party can sue the “other man” or “other woman” on grounds of “alienation of affection,” claiming that the third party’s actions destroyed the plaintiff’s marriage. There is no longer any such cause of action in New Jersey. Criminalizing adultery is also likely unconstitutional under Supreme Court precedent. Adultery may, however, affect divorce proceedings.

New Jersey Divorce Does Not Require Fault

New Jersey, like every other state in the country, has a form of no-fault divorce. Parties seeking to divorce can allege that they have “irreconcilable differences” with their respective spouses. Irreconcilable differences simply means that the marriage has irreparably broken apart due to issues in the marriage. It does not imply that either party has committed any wrongdoing.

To file for divorce, a party must allege the couple has been experiencing irreconcilable differences for at least six months, and that there is no reasonable prospect of reconciliation.

Are There Advantages to Filing Based on “Adultery?”

In some states, no-fault divorce is the only option. In New Jersey, parties can choose to file based on irreconcilable differences or one of the fault-based grounds–adultery, abuse, abandonment, etc. Some allegations will certainly have an effect: A history of abuse, for example, will likely affect decisions regarding child custody and parenting time. For the most part, however, fault-based divorces will play out the same regardless of the grounds for divorce.

There is one technical advantage to filing for divorce based on adultery: There is no waiting period. Technically, to file for divorce based on “irreconcilable differences,” a party must allege that the couple has experienced those differences for at least six months. Adultery, on the other hand, has no waiting period. A party can file for divorce immediately after the adultery occurs or is discovered. Adultery is the only grounds for divorce in New Jersey without a waiting period.

Does Adultery Affect Alimony, Property Division, or Other Rights?

Historically, fault in the divorce had an impact on the court’s decisions concerning spousal support, property division, and other issues. In recent years, with the rise of no-fault divorce, there has been a strong trend against fault being a consideration in the financial aspects of divorce. While allegations such as abuse may affect child custody, allegations of adultery are now unlikely to sway a court one way or the other.

There are limited exceptions. If a spouse has wasted (“dissipated”) marital assets, that may affect the equitable distribution of property. For example, if a party has spent thousands of dollars on gifts, vacations, or paying for rent for an extramarital paramour, then the court may take that into consideration when distributing property. Those amounts may come out of the cheating party’s “share” of the marital assets.

Additionally, in rare circumstances, a New Jersey court might find that a pattern of behavior was so extremely wrongful that ignoring it would be unconscionable or outrageous as a matter of public policy. Truly shocking behavior may affect the proceedings. For example, if a court finds that one spouse has engaged in an extremely wrongful pattern of behavior, then that spouse may not be entitled to alimony and may be disfavored in property division. A simple affair, or even a series of affairs, is unlikely to meet this exacting standard, but it is possible that a continuing pattern of adulterous and cruel behavior could be extremely wrongful in a court’s eyes.

Professional Legal Help With Your New Jersey Divorce

If you need experienced and effective legal help with divorce, premarital agreements, child support, alimony, or other family law matters in New Jersey, contact the Union offices of family law attorney John B. D’Alessandro at 908-964-0102.