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.

Having said this, is there no economic adjustment for a wife or husband whose spouse has a tiger in his or her tank? How about the traditional line (albeit narrow band) of cases which refer to egregious fault? Justice Long in Mani, in noting this exception to the general rule, struggled to define “egregious fault in this context that “. . . requires not simply more, or even more public acts of marital indiscretion, but act that by their very nature, are different in kind . . . and 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.” Thus, even in such circumstances, the fault, as it were, was limited to “. . . the initial determination of whether alimony should be allowed at all.”

The bottom line in those extraordinarily few cases which might rise to the level of being egregious is simply that there has to be some economic consequence linked to the act(s) before courts of this state will consider the conduct, but even then, it will consider fault not as retribution or damages, but only as a factor in determining needs or ability to earn. For instance, the offended spouse has become so distraught or medically harmed that she or he cannot engage in gainful employment and/or has incurred health-related expenses but for the conduct.

In almost 40 years of practice, I have never seen a case with such results. Can you think of an instance that meets that virtually impossible threshold?

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