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Marital Fault and Misconduct
What is marital fault?

Marital fault means that at least one spouse is guilty of marital misconduct that may be, but is not limited to, adultery, deviant sexual conduct, surfing too much porn, extreme cruelty or inhumane treatment, habitual drunkenness, mental illness, imprisonment, sexual desertion, drug addiction, non-support.

What type of behavior constitutes marital misconduct?

The legal definition of marital misconduct is any conduct that undermines the marital relationship. Marital conduct can be classified as marital misconduct. They include the following;

  • Habitual drunkeness or drug addition;
  • Adultery;
  • Domestic violence;
  • Cruel and abusive behavior; and/or
  • Economic fault.

What is economic fault?

There are several types of economic fault. They include the following:

  • Dissipation of assets;
  • Hiding assets;
  • Blowing marital funds to pay for a drug, alcohol or gambling addiction;
  • Blowing marital funds on an affair;
  • Excessive or abnormal spending;
  • The destruction of marital property;
  • The fraudulent sale or conveyance of property;
  • Reckless stock trading.
  • Incurring major tax debt because one spouse committed tax fraud.
  • Any other unfair or unreasonable conduct that prevents the court from making an equitable distribution of marital property.

How is marital fault considered in a New Jersey divorce case?

In the New Jersey courts marital fault such as adultery is not relevant when it comes to dividing up the marital assets. However, any type of economic misconduct, such as hiding assets is treated much more seriously by the family courts. The most common type of economic misconduct is the dissipation or the wasting of marital assets. The family courts only consider marital misconduct only when it has significant economic impact on the marital estate. For example, the adulterous conduct of a husband may be irrelevant to a divorce case. However, if marital funds were squandered at the Borgata casino by a cheating husband with his girlfriend then this factor may certainly be considered by the court.

In New Jersey the black letter law is that marital misconduct, such as adultery, should not be considered when determining the equitable distribution of marital property. However, the New Jersey courts now seem to be moving in the direction that marital fault should be considered "if and only if it has negative financial consequences."

Economic misconduct quite often means dissipation of assets. The dissipation of assets includes the wasting of marital assets through extravagant spending, gambling, excessive borrowing, or by stock trading. I have had several cases wherein one spouse refuses to work, and he or she lived on credit cards and the home equity line(s) of credit. Some judges may consider one spouse's excessive use of credit cards and of the home equity line of credit as a form of dissipating marital assets. In summary, when marital misconduct has a direct economic consequence on the economics of the marriage, then many family courts will consider that misconduct "to the extent it dissipates assets or other affects the parties' economic circumstances." Finally, when marital fault is considered at all, a family court may vary in the amount of weight assigned to marital misbehavior in the equitable distribution calculus.

Is marital fault relevant when it comes to determining child support and equitable distribution?

Web surfers must fully understand the divorce process before they decide to plunge in the world of the family courts. To quote the great movie the Godfather a divorce should be "Business and not personal." The family courts have moved toward this direction as well. In the past, a divorce case constituted a two part process. First, the person who sought to file for divorce had to prove marital fault. If and when fault was proven, then the family court would determine a support award(s), and the equitable distribution of marital property. This was the routine process in the New Jersey family courts up until the 1980's.

Fast forward 35 years later. Now the New Jersey judiciary has basically abolished the first prong of the divorce process. A litigant no longer has to prove marital fault to obtain a divorce in the Garden State. Today, the family courts only try to analyze a divorce as a business deal, and they try to view the case in contractual terms. It can't be over-emphasized enough that the goal of a divorce is not to prove that your husband or wife was a bum, a cheater, or a "good for nothing." Divorce is all business. The family courts are overwhelmed with cases. They don't have to the time, the patience, or the staff to try to making rulings on which spouse ruined the marriage. The family courts are only interested in determining a fair and reasonable child support award, determining alimony, splitting up the family's assets, and on making sure that the family's bills get paid during the divorce process. No family court ever makes a ruling to determine why the marriage failed, and on which spouse ruined the marriage. Instead, the family courts cut away all of the nonsense, or at least they try to, and they try to only make rulings on support awards and to equitably divide up the family's assets.

In summary, if a spouse is a cheater or a big jerk then this factor does not have much relevance in a divorce case. Moreover, if one spouse is a bad parent then this also does not have much relevance either. If one spouse is verbally or physically abusive then this factor also has little weight. When it comes to dividing the parties' assets and on determining support, the courts only wants to hear relevant testimony that does not focus on why the marriage ended.

However, there is always an exception to every rule. This exception applies to custody and parenting time cases. When the court is analyzing who should have the custody of the children, and what type of parenting plan is appropriate for the parties, then it will hear any evidence of specific acts of marital misconduct. Even though this type of evidence is not supposed to impact equitable distribution or determining support, it can and will affect the court's ruling(s) as to custody and parenting time. The rationale is that it is the family court's job to do what is in "the child's best interests."

What is the status of New Jersey caselaw with regard to marital fault?

Siegel v. Siegel, 241 N.J. Super. 12 (App. Div. 1990).

A major case is Siegel v. Siegel, 241 N.J. Super. 12 (App. Div. 1990). Here, the court held that the equitable facts of a divorce case are paramount to determine how to allocate marital debt. In dividing marital property and debt, the New Jersey Supreme Court has also stated: "Financial dishonesty or financial unfairness between the spouses, or overreaching also can be material." In the Siegel case, the court found that the defendant husband's gambling losses was essentially a dissipation of marital funds. Here, Mr. Siegel's gambling "indebtedness" was evidenced solely by a "note from him to a closely-held corporation," and the note, which had never been "called," was executed only ten days after the complaint for divorce was filed.

In the Siegel case, the court ruled that pre-marital debts could not be attributable to the wife. The main rationale of the Siegel case is that if a debt is incurred by a spouse, and if it is not related to the marriage, and if it is in further dissipation of marital funds, then the debt will not be apportioned. The Siegel case stands for the proposition that the key issue in the apportionment of marital debt is the "nature" of it. Here, the nature of the debts in dispute consist of entirely family related charges and expenses.

Goldman v. Goldman, 248 N.J. Super. 10 (App. Div. 1991).

Another illustrative case the case of Goldman v. Goldman, 248 N.J. Super. 10 (App. Div. 1991), is applicable. In that matter, subsequent to the filing of the complaint for divorce, the husband utilized approximately $400,000 of marital assets to continue to fund a failing car dealership which eventually went bankrupt. The debt was incurred post-complaint and contrary to an order barring unilateral dissipation of funds. Nevertheless, the court found the debt was incurred in good faith and it determined that each party would share 50% in this debt. The court found that Mr. Goldman was morally correct in borrowing the money. On the contrary, the Appellate Division held that Mr. Seigel was morally dishonest because he incurred debt by gambling.

The Goldman court further held that;

The division of property is responsive to the concept that marriage is a shared enterprise, a joint undertaking, that in many ways it is akin to a partnership. Only if it is clearly understood that far more than economic factors are involved, will the resulting distribution be equitable within the true intent and meaning of the statute. Id. 589. See also, Rothman v. Rothman, 65 N.J. 219 (1974).

Is marital fault a factor when determining alimony?

Marital fault or adultery is not listed as a factor in the alimony statute to determine alimony. However, the alimony statute provides "in all actions for divorce other than those where judgment is granted solely on the ground of separation the court may consider also the proofs made in establishing such ground in the determination of the amount of alimony or maintenance that is fit, reasonable and just." N.J.S.A. 2A:34-23.

The New Jersey courts have rejected an automatic bar to an alimony award based upon a spouse's acts of adultery. Now, marital fault or adultery is considered in light of the entire marital relationship.

In addition, the court will look to whether an adulterous spouse benefited at all economically from the adultery. If so, the court will then determine whether the economic benefits from acts of adultery justify a reduction or an elimination of alimony. The court will also consider the egregiousness of the adultery and whether the innocent spouse was publicly degraded by this event.

Can marital misbehavior play a role in calculating an alimony award?

In the case of Mani v. Mani, 183 N.J. 70 (2005), the New Jersey Supreme Court said yes, but only in very narrow and extreme circumstances. The recent trend in New Jersey law had been that adultery had no relevance in the court's determination of alimony. However, the Mani case indicates that adultery can now be used in very limited circumstances as a factor for a court to consider in determining whether alimony should be awarded.

The Mani case is a very important case to analyze, especially if your spouse is requesting alimony and if he or she is an adulterer. It is important to assess the particular facts of the marriage in this case. Brenda Mani and James Mani met in 1970. She was a college student, and she went to work for his business on the boardwalk on the Jersey Shore. After they married in 1973, they began working together for long hours at the business in the summer. They spent much of the off-season on vacation.

The business turned a profit. However, the income derived from the business did not fund what the trial judge found to be the couple's "extravagant" lifestyle. Instead, the court found that the couple's lifestyle was funded from gifts of stocks from Brenda's father. However, the gifts were only made to Brenda and not to her husband.

When the couple was in their 40's, Brenda's investment assets were worth $2.4 million dollars. Meanwhile, James' assets were only worth a few hundred thousand dollars at most. The parties filed for divorce because James committed adultery with several other women.

The trial court set alimony at $610 per week for James. The trial court held that James had an economic dependency on Brenda, which justified the alimony award. The trial court also concluded that James had the ability to earn $25,000 per year. Both parties then appealed. On appeal, James sought to have his alimony increased. James claimed that his alimony award would still leave him with a budget shortfall of $4,000 per month. Meanwhile, Brenda argued that he should receive no alimony. Brenda pointed out James' marital fault of committing adultery. Moreover, Brenda argued that James did not contribute any economic benefit to the marriage and that he did not deserve any compensatory alimony.

The Appellate Division held that James' acts of adultery certainly "warrant consideration in the amount of that award." The Appellate Division refused to increase James' alimony award. It thus relied on his marital misconduct to uphold the alimony award. The appeals court also refused Brenda's request to zero out the alimony award.

Both parties then appealed again to the New Jersey Supreme Court. The main issue before the New Jersey Supreme Court was whether an adulterer could or should receive alimony.

The judicial precedents in New Jersey as to whether marital fault should affect an alimony award had been divergent. Some cases permitted fault to affect an alimony determination. However, some cases held that marital fault could never be used to determine alimony. Finally, some cases indicated that marital fault and adultery could only be considered in the most egregious cases. The Mani court interpreted these precedents to support a continued, but very limited, role for marital fault in alimony determinations.

The Mani court held that marital misconduct is irrelevant to alimony awards except in two situations. First, marital fault can be considered when the misconduct has directly affected the economic status of the parties. For example, if the husband's cheating caused his wife to have a nervous breakdown, and this condition left her unable to work, the court may award her greater alimony because of the marital misconduct. Another scenario occurs when a husband dissipates the couple's assets recklessly. Quite often a husband will "blow" the marital savings on his new girlfriend. If this occurs, the court may order the husband to pay more alimony to his wife, who does not have the property to fall back on.

Second, the court held that alimony may also be barred when the potential recipient has engaged in misconduct that "is so outrageous that it can be said to violate the social contract, such that society would not abide continuing the economic bonds between the parties."

In remanding the case for reconsideration, the Mani court held that martial fault can be used as a factor to determine alimony, but only in very limited circumstances. Alimony is determined on a case-by-case basis. If the adultery has caused a wife's economic status to suffer, then this certainly could be used as a factor to increase the amount or term of an alimony award. Additionally, New Jersey adheres to a "shocks the conscience" approach to determining alimony for a spouse who commits adultery. Only marital fault that "shocks the conscience" can be used as a factor to assess an alimony award. In summary, the Mani holding preserved the narrow possibility that marital fault can be used as a factor in determining alimony.


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New Jersey is an equitable distribution state, meaning that the division of property in a divorce is to be done fairly, not necessarily equally. The court can take into consideration any factor it deems relevant when dividing property, but it must consider certain factors, such as how long the couple was married and the age and health of both spouses, the income or property brought to the marriage by each spouse, the standard of living that was achieved during the marriage, and the extent to which one spouse may have deferred career goals, among others.
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