When meeting with a new client whose spouse has cheated on them, the anger, sadness, sense of loss and betrayal is often palpable.  They are quite often resolute that they can never get over their spouse’s indiscretion (though referring to it as an indiscretion seems to minimize it from the victim’s perspective), and proceeding to divorce is their only option in their mind. That said, the hardest thing telling this person is that the court is going to treat this betrayal with a big “so what.”  This is just “garden variety adultery” after all.  He can’t see the kids because cheated right?  Um, no.  She can’t get alimony because she cheated, right?No again in New Jersey but in other states, I understand that this penalty exists.  But the court has to punish him/her right?  No.  At the very least, since she/he lied, to me, the court won’t believe that she/he is credible, right?  Maybe, but probably not. So other than divorce – you can still seek fault based divoce based upon the adultery – that’s it?  In most cases, yes.

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The bottom line is that, about 10 years ago, our Supreme Court , in Mani v. Mani, reaffirmed that fault really does not matter when it comes to the financial issues unless the fault is “egregious.” There are very few examples tht one could think of as to what is actually agregious, but normal adultery won’t usually be considered egregious.

There is one caveat though.  If you can show that marital funds were used in furtherance of the affair, then perhaps you can get half of the money back. However, proving this is often an expensive undertaking.

The take away from this is that there is rarely a legal pound of flesh that you can obtain when your spouse cheats.  While I am sure that this feels unfair, that is the current state of the law.

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Eric SolotoffEric 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 is resident in Fox Rothschild’s Roseland and Morristown, New Jersey offices though he practices throughout New Jersey. You can reach Eric at (973)994-7501, or esolotoff@foxrothschild.com.

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