Marriages end for a variety of reasons. Among the reasons couples may call it quits are financial fears, disagreements about children or religion, loss of romance, and sometimes, adultery. Not every marriage involving a cheating spouse will end in divorce. In the event you seek divorce after adultery, regardless of the part you played, it’s important to know the impact of a cheating spouse on your divorce.
Years ago one of a few ways to get divorced in New Jersey, and throughout the country, involved cheating on your spouse or your spouse cheating on you. Since 2007 New Jersey has been a “no fault divorce” state. That change has made it easier to get divorced. Neither party needs to be at “fault” for a court to legally end your marriage, and at the bare minimum, you just need to prove that your marriage has been irretrievably broken, for at least 6 months, with no possibility of reconciliation.
If one spouse did do something to cause the breakdown of your marriage – perhaps had an affair – it is still possible for a Complaint to be filed on the grounds of adultery. This requires not only naming the other party to the affair in the Complaint for Divorce, but also requires that person to be served with the Complaint for Divorce just as the Defendant-spouse is served. The intricacies of filing for divorce on the grounds of adultery make it a very unattractive count to add to a Complaint for Divorce, especially in light of the ease of filing under other grounds. Further, if you are filing under such a ground and can also file under another, (i.e. the “no fault” ground of Irreconcilable Differences) it is generally recommended that you file for both in the event that you cannot meet the burden of proof required for adultery.
While there might be a some closure in filing for divorce on the grounds of adultery, closure may be the only benefit. In the past, a spouse who was found “at fault” might be ordered to pay more alimony or might receive far less (or no) alimony depending on his/her financial position in the marriage. Now, however, fault has little to do with how the Court determines custody, child support, alimony, equitable distribution, parenting time, and counsel fees.
There are some considerations however, particularly with alimony if the cheating spouse’s adultery has negatively impacted marital finances. The Court can consider the conduct when determining how much alimony should be paid. This requires a significant impact to the parties’ financial circumstances and status quo, for example spending so lavishly on the affair that the funds available for the spouse and his/her household, are compromised.
How you file for divorce is an important consideration to make once you decide that litigation must go forward. It’s important to remember though, that litigation is not the only option when you decide that your marriage has run its course. If you choose to proceed to litigation, you need to speak with an experienced family law attorney. If adultery has touched your marriage, regardless of what side you are on, contact Jacobs Berger, LLC, today to discuss your next steps.
