Marital Fault

In a movie that I adore and one that should be required viewing for anyone contemplating marriage, Dean reluctantly says to Cindy, “You said for better or for worse. You said that. You said it. It was a promise. Now, this is my worst, okay? This is my worst. But I’m gonna get better.” Blue Valentine concludes with the heightened events that normally precede a client contacting a family law attorney for the first time. This climactic scene also represents the unspoken backstory that normally informs the still amorphous shape of the forthcoming storm known as a divorce proceeding.

Fittingly enough, one of the most scrutinized steps in the divorce process is its origin: the form and fashion of the service of the complaint. I have always been confounded by the level of anxiety associated with this step, as I imagine that anyone despondent enough to file for divorce must have previously manifested such animosity in some other form to their spouse. However, I have learned that many defendants are often too narcissistic, heedless or detached to believe that their spouse possesses the fortitude to follow through with what they previously dismissed as mere idle threats. As a result, receipt of the complaint can illicit  reactions that run the gamut from incomprehension to indignation. This spectrum is akin to the bewilderment and disconnect you experience upon seeing your souvenir  photo taken midflight during a rollercoaster ride, such that we each deal with stress in unique and unforeseen ways.Continue Reading Service of the Complaint: Can You Hear Me Now?

Though fault was allegedly was something that the court could consider when it related to the determination of alimony, since the Supreme Court decided the Mani case in 2005 fault was largely eliminated from the equation.  The reason is that that Court said that marital fault was largely irrelevant since alimony was neither a punishment to the payor nor a reward to the recipient.  That said the Court acknowledged two "narrow" exceptions to this general principle: "cases in which the fault has affected
the parties’ economic life and cases in which the fault so violates societal norms that continuing the economic bonds between the parties would confound notions of simple justice."  The court further noted:

With respect to the first exception, the Court held "to the extent that marital misconduct affects the economic status quo of the parties, it may be taken into consideration in the
calculation of alimony." Id. at 91 (emphasis added). However, when egregious "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."

The notion of "egregious fault" was born but much like the Loch Ness monster, many of us had heard of it, but few had seen it. That is, until the Appellate Division’s published (precedential) opinion released on October 19, 2012 in the case of Clark v. Clark.  In this case, the husband proved that the wife secreted $345,690 from their closely held business during their marriage. He argued that this should have prevented any alimony altogether.  The trial judge disagreed but did order the wife to repay half the amount taken, in satisfaction of plaintiff’s equitable distribution interest.  He appealed and the Appellate Division reversed the alimony provision of the final judgment of divorce, concluding the facts supported a
finding defendant engaged in conduct rising to the level of egregious fault.Continue Reading Finally A Case on "Egregious Fault" as it Relates to an Award of Alimony

Lately, it seems that wherever you turn, well-known personalities, whether they be athletes or entertainers, are entering sexual rehabilitation The question arises as to whether extra-marital sex can be converted into dollars by the offended spouse, that is, is there some theory by which compensation might be grounded.

The answer in New Jersey, perhaps, can be found in the case of Mani v. Mani, 183 N.J. 70 (2005), written by the well-respected Justice Virginia Long — a justice of the New Jersey Supreme Court who had a wealth of experience both on the trial bench in handling matrimonial matters as well as on the Appellate Division before being elevated to the State’s highest court. In that case, the issue was simply whether marital fault could be considered a factor in awarding alimony. We start from the theoretical position that the statute on alimony identifies fault as a factor. (Note that that was a left over from the time before the Divorce Reform Act in 1971 when the only grounds for divorce were based on fault. Since then, of course, several no-fault grounds have been added to the point being that most cases are now granted under irreconcilable differences) The practical question is simply to what extent will courts utilize fault as a factor in contested cases?

From 1971 and up until Mani, courts were reluctant to become enmeshed in time consuming tit-for-tat testimony which would essentially have no effect upon the outcome in any event. That attitude was resoundingly continued in Mani that alimony is not fault t based, but instead, an economic right of support arising out of the marital relationship to the extent of the standard of living enjoyed during the marriage. It is only where marital fault affects the economic status quo of the parties can a trial court take such fault into financial consideration.Continue Reading Marital Fault: A Factor in Awarding Alimony?