My Spouse is Sexting – Could my Spouse’s Sexting Impact my Divorce or Custody of my Children?

There has been much talk in the press about former United States Representative, Anthony Weiner. Everyone was interested during his original fall from grace from Congress in June 2011 when caught sexting, and that interest has peaked again now that a new round of sexting allegations has arisen, jeopardizing Anthony Weiner’s current bid for Mayor of New York.

But does sexting, or other types of lewd behavior, really matter in New Jersey divorce courts? What does the law truly have to say about such activities? And could such behaviors impact child custody?

In general, on the divorce front, New Jersey is classified as a “no fault” State. What that means is that, unless the marital fault is extremely egregious (like domestic violence that causes permanent injury), or unless the fault leads to an actual decrease in marital earnings or the worth of marital assets, the courts generally will not take into consideration a spouse’s poor or lewd behavior when it comes to financial issues. So, even if a spouse engages in sexting, or engages in other acts of lewd behavior, it is not likely to impact the divorce in any monetary way (i.e., alimony or the division of assets). There could be an exception, however, if a spouse uses a martial asset (like takes out a second mortgage or incurs large credit card debt) to support an affair. Or, another exception might occur if the lewd conduct caused the spouse to lose his or her job and ability to earn what he/she earned during the marriage. In those cases, a court might consider the marital fault, but not because of any moral judgment as to the spouse’s particular behavior, but simply because the behavior had a concrete monetary impact that hurt the married couple’s finances.

Custody and parenting time is a tougher question. While it is true that, when making custody determinations, New Jersey judges must consider “the fitness of the parents,” N.J.S.A. § 9:2-4c, it is equally true that “A parent shall not be deemed unfit unless the parent’s conduct has a substantial adverse effect on the child.” Id. Thus, when looking at any parent’s behavior, whether that be sexting, watching porn, getting drunk at parties, etc., the key question is not whether the parent’s conduct is bad, but whether that conduct has “a substantial adverse impact on the child.” Thus, there could be situations where a parent engages in questionable behavior, but does so only during adult hours and never does so in front of the child. Under those circumstances, it is very likely that a lewd parent – even a sexter – could enjoy frequent and liberal parenting time with his/her child. There are things that can be done in order to try to protect your child from harm, but they are not always easy and not always straightforward. What it really boils down to is, not necessarily how bad the parent’s behavior is, but whether that behavior substantially impacts the child.

If you or someone you know has questions about sexting, other behaviors, and how they might impact divorce or child custody, call one of the skilled matrimonial attorneys at Lyons & Associates, P.C. at 908-575-9777, our fill out our online intake form.

Written by: Theresa A. Lyons, Esq.