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Can An Adulterer Receive Alimony in New Jersey?
What are the historical origins of alimony and fault?
Alimony - which is the periodic payment one spouse might be ordered to pay anther following a divorce - is an old concept. Historically, wives who separate from their husbands for cause (or who were abandoned) could be awarded alimony. The basic assumption of alimony is that the wife lacked the ability to support herself.
The concept of alimony reflected the reality that most wives lacked the ability to support themselves. Moreover, alimony was consistent with the concept that marriage was a lifetime commitment. The main theme of marriage is that a husband had a duty to support his wife for life, even if the couple stopped living together.
A review of the history of alimony indicates that only "innocent wives" had a right to receive alimony. If a wife left her husband without just cause, then she had no right to collect any alimony.
In the 1970's and 1980's the concept of a fault-based divorce was gradually phased out. In New Jersey, most people are divorced on the no fault grounds such as "extreme cruelty" or eighteen months separation. Back in the day, a person could only get divorced if he or she could prove marital fault. As a result, if a person did not want to get divorced, then he or she could endlessly delay the court proceedings.
Basically, there has been a revolution in divorce law by the phasing out of "fault based" divorces. This tidal wave change in divorce law is a major reason why divorce rates are at record levels. Parties can now obtain "uncontested" divorces, which are quicker, cheaper and less messy than the divorce in the 1950's and 1960's. The level of nastiness has also been reduced because the spouses are not required to prove their spouse's failings.
The evolution of a "no-fault" divorce has also brought significant changes in the law as to alimony. Now, alimony is decided on a case by case basis. A main concept in the evolution of a no-fault divorce is that a divorced couple should be able to escape from a bad marriage. Divorced couples should be able to go their separate ways, and not be required to pay alimony for life. This new concept of divorce law is inconsistent with the concept that marriage is forever, and it is a life long financial commitment. As a result, courts now analyze alimony claims on a case by case basis. Alimony is not automatically awarded to a wife as it was back in the 1950's and 1960's.
Most states have eliminated fault or adultery as a factor in the determination of alimony. Most New Jersey courts will disregard adultery as a factor in the determination of an alimony award. However, in very limited circumstances, adultery can be still be considered as a factor in an alimony determination.
Is marital fault a factor in alimony consideration?
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 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 has benefitted at all economically from the adultery. If so, the court will then determine whether the economic benefits from any acts of adultery justify a reduction or an elimination of alimony. The court will also consider the egregiousness of the adultery and wether the innocent spouse was publicly degrade by this even.
Can marital misbehavior play a role in the alimony determination?
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 was that adultery had no relevance in the court's determination of alimony. However, the Mani case indicates that adultery can now be used as a factor for a court to determine whether alimony should be awarded. However, adultery can only be used as a factor in only very limited circumstances.
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 Mani's marriage. 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. On the off-season, the spent much of it on vacation.
The business turned a profit. However, the income derived from the business did not fund what the trial court 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 at most a few hundred thousand dollars. 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, and this 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 argued that James' marital fault by 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 has been divergent. Some cases have permitted fault to affect an alimony determination. However, some cases have held that marital fault can never be used to determine alimony. Finally, some cases seem to indicate that marital fault and adultery can only be considered in the most egregious cases. The Mani court interpreted these precedents, to support a continued, but a 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 has left her unable to work. In this type of scenario, 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. The marital savings will be blown on hotel rooms, trinkets for his paramour, and for trips. If this occurs, then 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 had 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 summary, 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 to suffer a nervous breakdown, then this certainly can be used as a factor to increase the amount of an alimony award, or to increase the term of it. 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 any alimony award. In closing, the Mani holding has preserved the narrow possibility that marital fault can be used as a factor in determining alimony.
To file for divorce in New Jersey under no-fault grounds, the couple must have been living separate and apart in different residences for at least 18 consecutive months. There must be no hope of reconciliation in the marriage.
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