You cheated on your wife. It happened. You aren’t the first husband to have an affair, and you won’t be the last. According to Institute for Family Studies (IFS), 20 percent of men report “having sex with someone other than their spouse while married” – and those are just the ones who responded to a survey question honestly.
Regardless of the reason for your indiscretion, if you are now preparing for a divorce, you need to understand how adultery impacts the process. The good news is this: It will probably impact your divorce less than you think.
If you cheated on your wife, it could affect certain aspects of your divorce, such as child custody or the division of assets, but it generally won’t result in major penalties unless you used marital funds for the affair.
Understanding the Limited Role of “Marital Fault” in a New Jersey Divorce
While most states have moved away from the concept of a fault-based divorce, New Jersey still allows spouses to cite certain forms of “marital fault” as their reason for filing for divorce. These forms of marital fault include adultery.
But, while it is still possible to file for a fault-based divorce on the grounds of adultery in New Jersey, rarely is it actually preferable to do so. First, in order to file for a fault-based divorce, your wife must be able to prove that you had an affair. In contrast, in order to file for a no-fault divorce (on the grounds of “irreconcilable differences”), all your wife needs to do is file the necessary paperwork in court.
Second, not only is it easier to file for a no-fault divorce, but there are no significant benefits to successfully proving marital fault at the outset. While adultery can have a limited impact on a divorce (more on this below), the relevant issues can be raised in either a fault-based or a no-fault divorce.
Third, filing for a fault-based divorce inherently raises the stakes. By choosing to file for a fault-based divorce when it is not necessary to do so, it is fair to assume that your wife is trying to send a message. Fault-based divorces, while rare in 2019, tend to be even more adversarial than even the most hotly-contested no-fault divorces.
So, how might your adultery impact your divorce? The three most-likely scenarios are:
1. Your Wife Will Try to Use It Against You to Gain Custody.
Your wife may try to argue that your affair indicates you are less capable of serving as a custodian and role model for your child. But, while an affair can be relevant under New Jersey’s “best interests” factors for establishing custody and visitation (also known as “parenting time”), there are numerous countervailing issues to consider as well.
2. Your Wife Will Try to Use It to Increase Her Share of Your Marital Estate.
As a general rule, marital fault is not “punished” during the divorce process. In other words, your wife should not be entitled to a larger share of your marital estate simply because you cheated. But, if you spent marital assets on your affair, then your wife may be entitled to recoup the funds out of your share of the estate.
3. The Risk of Having Your Affair Made Public in Court Will Impact Your Decision-Making.
Courtroom divorce proceedings are public; and, if your wife raises your affair during a contested divorce, other people may find out that you cheated. If this is important to you, it may be a factor you need to consider during your divorce.
Get Advice from an Experienced New Jersey Divorce and Men’s Rights Attorney
Are you concerned about how your affair might impact the outcome of your divorce? If so, we encourage you to contact us for a confidential initial case evaluation. To speak with an experienced New Jersey divorce and men’s rights attorney at our offices in Hackensack, please call (201) 654-4263 or tell us how to reach you online today.
