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.

In reaching its decision, the Appellate Division stated:

… Nevertheless, defendant’s conduct transcends mere "economic impact," as she not only betrayed the sanctity of the marital vows of trust, but also kicked their economic security in the teeth by secretly draining cash from the pharmacy. Defendant conceived and carried out a long-term scheme to embezzle the cash receipts from Grayrock,
which deprived plaintiff of the immediate fruits of his daily labors and impinged on the viability of the joint business asset and the family’s future security. We determine her actions smack of criminality and demonstrate a willful and serious violation of societal norms.

The court noted that it was, "…  free to consider whether extraordinary, flagrant, economic misconduct during the marriage may rise to the level of egregious fault resulting in divorce and warranting denial of an otherwise valid claim for alimony." The court noted that excessive spending, waste of marital assets, or other acts of bad judgment was not "egregious fault." 

However, when marital misconduct, even though economically based, evinces significant, willful wrongdoing, designed to fraudulently and purposefully deprive
one’s spouse of the economic benefits of the marital partnership, the acts transcend fault affecting the economic status quo, and in fact "violate[] societal norms," id. at 73,
and equate to "egregious fault." In analyzing such instances, trial courts must consider the totality of the facts and circumstances presented and determine whether the conduct
warrants severing all economic bonds between the parties by precluding an alimony award.

In this case, the Appellate Division found fatal the trial court’s failure to consider  whether defendant’s economic improprieties were so outrageous as to warrant additional relief as directed by Mani

Thus, despite many people espousing that the issue of marital fault is dead, this case serves notice that it is not.  While this case dealt with economic misconduct, clearly this seems to open the door to all misconduct which is willful, fraudulent, extraordinary and violative of societal norm.  Seemingly, the garden variety affair would not be enough?  But what about multiple affairs with people known by their spouse?  What about elaborate ruses to continue an affair where once caught?  It shall be interesting to see whether this law develops further.


Eric Solotoff is the editor of the New Jersey Family Legal Blog and the Co-Chair of the Family Law Practice Group of Fox Rothschild LLP. Certified by the Supreme Court of New Jersey as a Matrimonial Lawyer and a Fellow of the American Academy of Matrimonial Attorneys, Eric practices in Fox Rothschild’s Roseland, New Jersey office though he practices throughout New Jersey. You can reach Eric at (973)994-7501, or