NJ Family Legal Blog : New Jersey Divorce and Family Lawyer & Attorney : Fox Rothschild Law Firm : Alimony, Child Support, Child Custody, Prenuptial Agreements, Essex, Morris, Mercer, Atlantic

In reaction to the Supreme Court's decision in Mani v. Mani (which held that non-economic fault was not relevant to alimony except in "egregious circumstances") and the Appellate Division's decision in Calbi v. Calbi (which did not preclude alimony to a woman who beat and kicked her 14 year old son to death during an alcohol related incident), on April 17, 2009, Governor Corzine signed a bill that did the following:

• It amended the alimony statute to deny alimony to a person convicted of murder, manslaughter, criminal homicide, death by auto, aggravated assault of a similar office in a other jurisdiction if the crime results in the death of a child and is committed after the divorce.
• It eliminated inheritance rights for a surviving parent that abused, abandoned, committed a sexual offense against or negligently endangered the child
• It eliminated under the worker's compensation statutes recovery by a parent who committed those same acts against their child. 

We previously blogged about the tragic Calbi case.  To see that post, click here.

The new law takes effect in July 2009.

Though the Appellate panel in Calbi invited the Legislature to amend the law, it will be interesting to see if there will be further legal challenge to these laws, particularly as to the alimony  and worker's compensation aspects, because of the specific purpose of those laws. 

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Mark Ashton, a partner in our Exton (Chester County), Pennsylvania office and the editor of our Pennsylvania Family Law Blog, wrote an excellent post entitled "I Want You To Show How Awful She Is", on that blog.

To read the full post, click here.

NJ allows people to seek a divorce on both fault and no fault grounds.  The fault only gets someone a divorce.  Moreover, even before irreconcilable differences was added as a no fault cause of action a few years ago, and we often proceeded on "extreme cruelty" grounds, no one, other than the litigant's cared about the cause of action.  In fact, at the final hearing, when a party testified about the cause of action, the typical questions were to ask whether the contents of the complaint were true, if you had to testify about them on that day, whether your testimony would be substantially the same, and whether it was unreasonable and improper to require the people remain married.

Moreover, as noted in prior posts, the Supreme Court confirmed in Mani v. Mani that fault does not matter in divorce cases except in extreme cases (i.e. the attempted murder of a spouse.)  That said, like Mark noted in his post, if marital assets were used to further the affair, those assets can be recovered. 

Character does not matter as much as credibility, which is more often affected by someone's conduct during the litigation or just before it if there was divorce planning, than who they had an affair with or how they treated their spouse during the marriage.

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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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