NJ Family Legal Blog : New Jersey Divorce and Family Lawyer & Attorney : Fox Rothschild Law Firm : Domestic Violence, Prenuptial Agreements, Child Custody

Following up on our recent blog post addressing how marital fault is not of particular relevance in New Jersey divorce litigation, a front page news story in the August 3, 2008 Long Island edition of Newsday entitled Lawmakers are Split on Divorce focused on New York as the only state without a no-fault divorce option. The article notes that despite support from many New York legislators to develop a no-fault option in New York and the fact that many ordinary couples cannot afford the nasty drawn out divorce proceedings resulting from New York’s archaic law, such laws still face resistance from the Catholic Church and the National Organization for Women-New York State.

A no-fault divorce bill recently introduced to the New York State Senate was not even voted on during the most recent session, but expects to be reintroduced next year for consideration. If enacted, the bill would allow couples to divorce without assigning fault to either party when a marriage is irretrievably broken for at least six months. Prior to obtaining a no-fault divorce, the parties would be required to resolve beforehand issues including equitable distribution, spousal support, child support, legal and other fees, child custody, and visitation.

This proposal would provide couples with an option similar to that seen in New Jersey, which allows parties to obtain a divorce without unleashing the sort of embarrassing testimony revealed during Christie Brinkley’s battle with her ex-husband, Peter Cook. In a similar fashion to New Jersey, the fault grounds would still be available. Based on what has transpired in New Jersey, however, it is likely that parties would more likely turn to the no-fault option as a means for achieving the same end as they previously achieved via fault grounds – namely, a divorce.

It is most certainly time for New York lawmakers to dust off its divorce legislation and provide couples with what is ideally a more amiable and cost effective option for ending a marriage.

EDITORS NOTE:  Since I was a college student in Albany in the 1980s, and probably even before then, the issue of bringing no fault divorce to New York was raised, but never passed. 

Further, while New Jersey seems to be cited as beacon, the irreconcilable differences option in New Jersey is less than two years old. Prior to that, New Jersey's no-fault option required couples to live separate and apart for 18 months with no reasonable prospect of reconciliation.  Since most people did not want to wait, the majority of cases were filed under the fault ground of "extreme mental cruelty."  Aside from airing dirty laundry and causing anger and anguish, it really had little effect.  The reason for this is that at the divorce hearing, the party was asked if the allegations were correct when the Complaint was filed and  if they had to testify about them, their testimony would be substantially the same.  Put another way, at the end of the day, it didn't really matter and the "fault" ground caused unnecessary upset.  Eric Solotoff

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With the slew of recent celebrity or notorious divorces in the news lately (i.e. Christie Brinkley, Jim McGreevey, Bill Murray, A-Rod, to name a few), one would think that adultery and other marital fault is really dealt with in the courts and that people are punished for these actions by a Court. 

Maybe they are in other states, but it is not particularly relevant in New Jersey.  In fact, in 2005, the New Jersey Supreme Court, in the Mani v. Mani case, held that marital fault is irrelevant to alimony except in two narrow instances: cases in which the fault negatively affects the economic status of the parties and cases in which the fault so violates societal norms that continuing the economic bonds between the parties would confound notions of simple justice (examples given were attempting to murder the supporting spouse and deliberately infecting a spouse with a loathsome disease.). . 

This is not to say that the conduct is ignored altogether.  If a spouse spent marital funds on a paramour, the fault  is not considered but the other spouse by may be due a credit.  Similarly, if the conduct impacts on the fitness of a parent and/or the best interests of the children, they can be raised in custody and parenting time proceedings. 

While NJ still has fault grounds for divorce (i.e. adultery, extreme cruelty, desertion, voluntary drug addiction, habitual drunkenness, institutionalism for mental illness, imprisonment and deviant sexual conduct), they are not often plead anymore now that the no-fault "irreconcilable differences" cause of action for divorce was enacted.  That said, even when they are plead, all they get you is a divorce. 

Unless there is a limited issue where this is relevant, leave the seedy mudslinging to the celebrities. 

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In late 2007, in Calbi v. Calbi, 396 N.J. Super. 592 (App. Div. 2007),  the Appellate Division once again re-affirmed the notion that marital fault is all but irrelevant when assessing a party's right to receive alimony. 

In what was as tragic a case as any parent could imagine, Mr. Calbi sought to terminate or reduce his alimony after one of the party's two children died at the hands of the mother.  Specifically, while intoxicated, during an altercation, Mrs. Calbi kicked her son three times in the head and once in the neck.  He died as a result of the injuries he sustained.  Ultimately, Mrs. Calbi plead guilty to second degree aggravated assault for which she was to be imprisoned for approximately 3 years.  As a result of the grief and trauma associated with the loss of his son as well as the added responsibilities for caring for the parties' other son, Mr. Calbi fell behind on his alimony.  In light of all of the circumstances, he sought the reduction if not elimination of alimony. 

The trial judge ultimately that any application to terminate alimony should await Mrs. Calbi's release from prison.  However, the current support was suspended, but the prior arrears were not vacated and Mr. Calbi was ordered to pay them. 

The Appellate Division reversed holding that suspension of Mr. Calbi's alimony payments and vacation of the alimony arrears that accrued after death of parties' child was required.  Moreover, upon Mrs. Calbi's release from prison, Mr. Calbi was entitled to a hearing  to determine whether the child's death affected his ability to pay alimony. 

That said, the Court went back and reviewed the cases regarding fault, including the 2005 case of Mani wherein Justice Long held that marital fault was irrelevant to alimony except in two narrow instances: cases in which fault has affected the economic life of the parties, and “cases in which the fault so violates societal norms that continuing the economic bonds between the parties would confound notions of simple justice.”   Justice Long spoke of   “egregious fault,” which she defined as acts by their very nature, are different in kind, such as a spouse attempting to murder the other spouse; a spouse who as deliberately infected the other with a loathsome disease.  Justice Long went on to say,  "Underlying these examples is the concept that some conduct, by its very nature is so outrageous that it can be said to violate the social contract, such that society would not abide continuing the economic bonds between the parties. In the extremely narrow class of cases in which such conduct occurs, it may be considered by the court, not in calculating an alimony award, but in the initial determination of whether alimony should be allowed at all." 

Since Mrs. Calbi's actions were not deemed to be intentional, either in the criminal court or the family court, she was not precluded from receiving alimony no matter how contemptible or aberrant her conduct was. 

That said, if this conduct will not terminate alimony, then there is little by way of fault that would do so. 

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