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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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?

In reading an article today from the New York Times entitled, Rise in Divorce Evidence from Social Websites, I was intrigued at how rapidly changing technology places a microscope on even the world of family law, as words you might have uttered once on the Internet may come back to haunt you in your family law litigation.  From Facebook, to Twitter, to Myspace, to blogs, there is certainly no shortage of ways to put your thoughts out there and, from a legal perspective, no shortage of ways to contradict what you might represent in a divorce dispute, domestic violence litigation, and the like.

The article is interesting for its discussion on the rise of the use of such evidence in matrimonial matters in recent years.  Even giving a cursory look at  someone’s Facebook page typically reveals a wide breadth of personal information that you might not otherwise know about them.  Pictures and videos are often posted, and personal messages are often revealed for all with access to see.  Not surprisingly, usually the other spouse is a Facebook or Myspace "friend" with access to the page.  Even less protected is Twitter, where anyone can see your page, since there are no access restrictions.

I was just involved in a Final Restraining Order hearing where the wife claimed that she was fearful of her husband based on alleged acts of domestic violence.  I countered this claim in part by submitting to the Court as evidence a message that the wife posted to the husband on Facebook after the alleged act of domestic violence occurred where she professed her love for her husband, told him she missed him and that she could not wait to see him.  While the effectiveness of such evidence is no guarantee, it certainly helps to impeach one’s credibility, especially during a Final Restraining Order hearing where the Court bases its rulings in large part on the a "he said/she said" version of events.

When all is said and done, these websites provide a cautionary tale for anyone party to a family law litigation.  While many of us enjoy posting information about ourselves, what we do for a living, who we know and what we look like, you never know if you will one day end up in family court litigating a dispute when all of a sudden you are confronted with something you wrote ages ago on the Internet that contradicts the position you are submitting under oath.  Technology will only continue to develop in the social networking realm and the lesson to be learned is – typers beware…

I have blogged several times about the celebrity divorces that have been in the news, from John & Kate, to Christie Brinkley, to Stephanie Seymour, to Jim Nantz, to the McCourts who own the LA Dodgers and others.

Every day for the last few weeks, Tiger Woods has been front page news regarding what he first called "indiscretions" and now calls "infidelity."  We have heard in the news about potential sweeteners to his prenuptial agreement if his wife stays, to rumors that she will leave him and so on .  Obviously, since the information from Tiger and his wife is limited, people are left to speculate and gossip.

 As a New Jersey Divorce Lawyer, the best that I can offer is to give some comments on how New Jersey divorce and family law would apply to the facts (hypothetical, speculation or true facts that have been reported). 

In New Jersey, marital fault is largely irrelevant except in limited circumstances.  Though not particularly necessary anymore since we have no fault (irreconcilable differences) divorce, the fault ground of adultery can still be plead as a divorce cause of action.  That said, receiving a divorce based on adultery does not get you anything more financially.

Continue Reading ON TIGER, "INDISCRETIONS", "INFIDELITIES" AND SO ON – ALL OF THE GOSSIP GIVES RISE TO A GREAT LAW SCHOOL EXAM QUESTION

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.