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