Rights in NJ Divorce if Your Wife or Spouse Committed Adultery
According to surveys, as many as one in five Americans have admitted to cheating on their spouses. This may be a shockingly high number, but the reality is that many people have experienced the effects of infidelity firsthand in their own relationships and marriages.
Suppose your wife cheated on you, and you have decided to file for divorce. In that case, it will be essential for you to understand how adultery affects (and doesn’t affect) the divorce process in New Jersey. Even though your wife’s cheating isn’t completely irrelevant, you might be surprised to learn that, under New Jersey law, adultery doesn’t usually play a significant role in the process or outcome of most divorces.
Our Men’s & Fathers’ Rights Divorce Lawyers by Schultz & Associates, LLC will explain the legal requirements for getting a divorce, the options available to divorcing couples, and how adultery may impact the outcome of a divorce proceeding. Continue reading for more information.
Adultery: What Is It?
Extramarital sexual activity refers to sexual encounters outside of the marriage. That’s right, to commit adultery, one or both sex partners must be legally married to someone else. This qualifies as a “fault” in New Jersey divorce law—although you don’t necessarily need “fault” to file for divorce.
Is adultery illegal in the Garden State (NJ)?
Adultery is not against the law in the Garden State (New Jersey). While some states mayprohibit similar conduct, New Jersey does not. That doesn’t mean cheating partners won’t face certain consequences and it will necessitate a discussion about how the affair may have been funded financially or ensuring that the children are shielded (at least at the onset) from being introduced to the paramour.
What Effect Does Cheating Have on Divorce?
Let’s say one spouse has an affair. Both spouses agree that this has led to an ‘irreconcilable difference.’ A no-fault divorce is an option for the married pair in such a situation. Or, you could file under adultery and serve the paramour with papers, thus potentially breaking up another relationship or marriage. There are two ways to go and most people decide how to file for divorce based on their emotional state at that time. One party having an affair does not necessarily entitle the non-cheating spouse to any more money for being a victim of adultery. However, that is not to say that guilt isn’t a powerful mechanism to settle a case.
How do I File for Divorce in NJ?
When one spouse cheats and the other wants a divorce, either spouse can file a ‘Complaint for Divorce’ with the Family Division of the New Jersey Superior Court. You can file under a no fault, Irreconcilable Differences or you can file under Adultery.
If you file under Adultery, there is a bit more paperwork that needs to be filled out and eventually, you may need to prove that there was adultery to sustain your request for divorce based on this reason. That is not to discourage you, but you want to be careful and really consider your intention of deciding to file under adultery versus irreconcilable differences.
If there was adultery and there was a financial impact on the family for the cheating spouse to support the other relationship, then our attorneys will assess the situation and advocate for you to be given a credit for the marital funds utilized.
Should You File for a Fault-Based Divorce in NJ?
New Jersey is one of the limited numbers of states that still allow spouses to file for divorce on specific fault-based grounds. But, this concept is not mutually exclusive. You can also file under Irreconcilable Differences, which is basically the same as a no-fault cause of action.
Under Section 2A:34-2 of the New Jersey Statutes, adultery is listed explicitly as a form of “marital fault.” However, divorce on no-fault grounds is also an option for New Jersey residents. Even if your wife cheated on you, it might still be in your best interests to file for a no-fault divorce instead of filing on fault-based grounds.
For a divorce to be considered “at fault,” one spouse must demonstrate wrongdoing on the part of the other. To name a few of them, this includes:
- Desertion for a period of a year or more
- Substance use and abuse
- Alcohol addiction
- Placement in a mental health facility for a duration of two years or more
- Incarceration for a period of 18 months or more
- Acts of sexual deviancy committed within the marriage without one partner’s permission.
What is a “No-Fault Divorce”?
A “no-fault” divorce is an option in New Jersey. You may have ill will towards your partner for the breakdown of your marriage, adultery or otherwise, but you don’t have to play that out in a court of law and incite emotions. When you file for a no-fault divorce, all that is required is a statement that you and your partner have reached “irreconcilable differences”, with those reasons being personal to you both. However, if you want the world to know your dirty laundry, you do have that option as well, although we will talk about the real-life pragmatic implications of this and the impact on the legal issues and the cost of litigation
When you file under Irreconcilable differences, you do not need to prove that these differences exist. If your spouse challenges your divorce filing, the fact that you disagree over whether to get divorced can itself demonstrate the irreconcilability required for a no-fault divorce in New Jersey.
By contrast, when you file for a fault-based divorce, you need to be able to prove it. If you file for divorce on grounds of adultery, you will likely need evidence that it occurred.
Aside from being emotionally troublesome and expensive, this can also delay your divorce filing, and it will give your spouse (and his/her attorney) the opportunity to argue that you have not presented sufficient evidence to justify a fault-based divorce. This is really only applicable when one spouse doesn’t want to divorce, despite her having an affair.
Additionally, even if you prove the adultery, the benefits of filing for a fault-based divorce will be limited. In today’s world, the courts focus much more on finding mutually agreeable terms to end the parties’ marriage than assigning and punishing fault.
How Will Your Wife’s Adultery Impact the Outcome of Your Divorce?
Even in the event of a no-fault divorce filing, you can still raise the issue of your wife’s adultery to the extent that it is relevant to specific aspects of the divorce process.
Depending on the circumstances of your divorce, this may include:
While the fact that your wife cheated will not necessarily affect the equitable distribution of your marital estate, it can be relevant in one specific way: If your wife used marital assets to fund her affair (i.e., by purchasing plane tickets and hotel rooms), you might be entitled to recoup these costs out of your wife’s share of the marital estate.
Similar to property distribution, if your wife’s affair had an economic impact on your marriage, then it may factor into the determination of alimony. However, New Jersey does not generally recognize the concept of “punishing” a wife for cheating by denying an alimony claim by either spouse.
The New Jersey courts consider various factors in determining what is in a child’s “best interests” concerning custody and visitation or parenting time. One of these factors is “the stability of the home environment offered.”
If your wife’s cheating negatively reflects on her ability to raise and care for your children (or if her boyfriend is a drug user or alcoholic), it may factor into determining child custody or even visitation in your divorce. But it’s possible that adultery won’t play a significant role in deciding who gets custody of a child. Even though a parent has broken their marriage vows, it may still be in their child’s best interests for them to maintain a relationship with the adulterer. But ancillary issues such as whether the child should be around the paramour or the amount of time the adulterer has with the child may be relevant in very limited circumstances and dependent upon the specific facts of the relationship (especially if your spouse may be a prostitute, as an example).
Adultery is not a factor when determining child support in the true sense of the word. However, the amount of time each parent spends with the child does affect the child support amount. So, depending on the nature of the adultery and ongoing “extracurricular activities” of that person could impact (at least short term) what an appropriate visitation schedule would look like, which, then in turn, would effect child support.
Does Adultery Have an Impact on Alimony Payments?
The New Jersey legislature addressed the issue of alimony duration in 2014, laying out 14 criteria that courts must consider. Adultery is not specifically mentioned.
If one spouse is living with or getting financial support from the other spouse’s new relationship or partner, that spouse may lose some or all of their alimony rights depending. This is more appropriately addressed under the laws of NJ relating to Cohabitation.
Speak With a Hackensack, NJ, Family Lawyer About Your Divorce
Are you considering a divorce because your wife cheated on you? If so, we encourage you to discuss your rights with us; we want you to live a better life, whatever that may look like for you. Our primary focus is ensuring you understand and learn all about your legal rights and entitlements, and we truly focus on the family in a holistic way, ensuring that we can minimize any negative impact of this divorce on you and your children as best we can.
To schedule a confidential initial divorce case evaluation with an attorney at [MFR] Men’s & Fathers’ Rights Divorce Lawyers by Schultz & Associates, LLC, please call (201) 880-9770 or request an appointment online today. You have a legal team waiting for you.