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5 Tips for Dealing with Adultery and Your Divorce

Posted by Richard DeMichele | Jun 05, 2014 | 0 Comments

The Impact of Adultery on Your Divorce

If you are getting divorced because of an affair, or in part because of an affair, the following divorce tips concerning adultery may help guide you through the divorce process. Going through a divorce is an emotional time for anyone.  The emotions associated with a divorce — particularly when adultery is involved — can be overwhelming. It is nevertheless imperative to keep you emotions separated from your divorce analysis and negotiation in order to ensure the best possible outcome for both you and the people whom you care about. Here are a few additional reasons why it's critical to focus on the task at hand:

 1. Adultery has Little Impact on Divorce Finances

Even though your spouse may have cheated and brazenly betrayed your trust, not to mention your marriage vows, there is rarely any impact of adultery on the financial resolution of your divorce. Adultery is not a factor for equitable distribution. You may believe that you should receive an increase share of the property you own due to the infidelity. Notwithstanding how you may feel, the fact remains that adultery is not a statutory factor that the court will consider when dividing up your marital estate.

2. Adultery has No Impact on Child Custody Either

Much like equitable distribution, adultery has no effect on child custody or parenting time. Your spouse may have betrayed you but, in the eyes of the court, this does not mean that he or she is necessarily an unfit parent. Your trial court will always evaluate what is in the children's “best interest.” Clearly, someone who commits adultery is not a good spouse; all the same, our family courts assume that not being a good spouse does not mean an adulterer is not a good parent able to act in his or her own child's best interest on a daily basis.

3. New Jersey Does Not Require Proof of the Adultery

New Jersey is a “no-fault” divorce state. This means that if the parties live separate and apart for more than eighteen (18) months, they do not need to show fault or cause to obtain a divorce. Conversely, adultery is one of several fault-based causes of action used to obtain a divorce that does not require proof of an eighteen (18) month separation. However, New Jersey also recognizes as a “for cause” or “fault basis” irreconcilable differences. In alleging irreconcilable differences, you must be able to state that you and your spouse experienced a breakdown of your marriage for more than six (6) months preceding filing for divorce and that there is no reasonable prospect of reconciliation. This standard is by its very nature very low. If you intend to plead adultery in your divorce complaint or divorce answer, you must name the party with whom your spouse has been having the affair and serve that person with a copy of the complaint. Your spouse's paramour would then have an opportunity to enter into your litigation in contest the allegation of affair. Given that this torturous process outlined above has little to no impact on custody or finances resulting from the divorce, most people choose to plead irreconcilable differences even when there has been adultery in their marriage.

4. Negotiating the Property Settlement Agreement

While adultery does not have much impact on the financial aspect of a divorce or the custody aspect of a divorce, it can influence the terms of a property settlement agreement. There is a psychological and emotional component to the affair. A betrayed spouse can use the affair as leverage to engender a favorable equitable distribution or alimony. This may be particularly true when the cheating spouse intends to continue their relationship with their paramour. Remember: in settling divorce issues, strict adherence to legal principles need not be followed and that is often the basis for a compromised resolution.

5. Expenses Associated to the Affair Can Be Considered

There's always an exception, and in this case, there exists one area of the divorce where the particulars of one spouse's affair may play a role in the final resolution of the divorce. If the betrayed spouse can show that the cheating spouse used a significant amount of marital funds to foster and continue the affair, then at that point, a credit in equitable distribution may be appropriate. For example, a credit may be applicable if your spouse, who owns his or her own business, used his or her business expense account to rent hotel rooms or purchase jewelry, expensive restaurant meals, and other gifts for their paramour. ___________ Experienced matrimonial legal counsel can help keep your divorce on the right track and work towards the best possible outcome. If you or a loved one have questions regarding the impact of adultery on a divorce, or the New Jersey divorce process generally, please contact us or call us at (856)546-1350 to schedule a confidential consultation with our experienced New Jersey divorce attorneys.  

About the Author

Richard DeMichele

Richard A. DeMichele, Jr. is a seasoned litigator, devoting a substantial part of his practice to family law and personal injury matters.

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