New Jersey is one of seventeen states that are no-fault divorce states, meaning that when a couple files for divorce in the state of New Jersey, they generally cite irreconcilable differences as the reason that the marriage did not work out. Ultimately, a no-fault divorce is much less time-consuming, costly, and emotionally draining than a fault-based divorce. However, if your spouse was unfaithful, and you feel hurt and betrayed by their actions, you may be inclined to pursue a fault-based divorce with the assumption that your spouse’s actions will have an impact on your divorce settlement, including spousal support and child support. A dedicated divorce lawyer can assist you with every step of the divorce process, strive to protect your rights, and pursue the financial settlement to which you are entitled.
When Does Adultery Affect the Terms of a Divorce?
While your spouse’s adulterous behavior will not have an impact on the outcome of your divorce, there are certain circumstances where your spouse’s adulterous behavior will impact the outcome of your divorce settlement, including the following:
- Your spouse uses marital funds to pay for expenses related to their affair. If your spouse used assets or marital property to pay for things like gifts, hotels, vacations, or to provide financial support to the person they are having an affair with, your spouse will likely have to reimburse the marital estate for those funds. New Jersey follows the rule of equitable distribution of marital property, which means that property and assets are distributed fairly and opposed to equally. When the property is divided, your spouse may receive less in assets based on the amount they spent on the affair. You must provide evidence that proves that your spouse spent marital funds on the individual with whom they were having an extra-marital affair. Consider the amount of money spent on the affair, and whether it is worth your time to pursue it.
- Your spouse leaves your marital home to live with their new partner before the divorce is finalized. This may impact the outcome of your divorce settlement, as it may suggest that your unfaithful spouse does not need as much spousal support as they would if they lived alone.
- You have a prenuptial agreement. If you have a prenuptial agreement that includes an “infidelity clause,” you may be awarded damages if you can prove that your spouse was unfaithful. However, if your spouse signed the prenuptial agreement under duress, or your spouse can prove that they did not understand what they were signing, a judge has the right to declare the prenup invalid.
How Do I Prove Marital Waste?
If your spouse uses marital funds to spend lavishly or irresponsibly for their own benefit, including spending an extravagant amount of money on an extra marital affair, this is considered “marital waste.” In order to prove marital waste, you may need to hire someone who can perform forensic accounting on your behalf. This may include obtaining bank and credit card statements to determine whether significant charges were made on hotels, vacations, jewelry, and other costly purchases using marital funds. However, if your ultimate goal is to walk away from the marriage as financially stable as possible, you may want to consider whether this strategy is worthwhile from a financial standpoint. The costs associated with forensic accountants can accumulate very quickly, so make sure that you think this through and consult with your divorce lawyer first.
Will Adultery Impact Child Custody?
While you may feel that you have a right to full custody of your children as a result of your spouse’s betrayal, it is unlikely that their adulterous behavior will have an impact on custody matters, including child support and parental rights. In the eyes of the court, adultery does not impact a spouse’s ability to be a loving parent. However, there are circumstances that may impact the outcome of a custody dispute, including:
- Your spouse’s infidelity has caused actual emotional harm to your child. If your spouse’s affair directly affected the well-being of your children, it could impact child custody matters. An example of direct harm is if your spouse brought the children along when meeting their partner at a hotel, or at their home. The children being upset by the affair and divorce is considered indirect harm, and would not weigh on the matter the same as direct harm.
- The affair would have a negative impact on the child’s home environment. The courts decide custody issues based on what is in the best interest of the children. If your spouse, or your spouse’s new partner has a history of domestic violence or abuse, is neglectful, or engages in reckless or dangerous behavior that jeopardizes the safety of the children, this will likely impact the outcome of the custody agreement.
What If My Spouse Marries the Person with Whom They Had the Affair?
If your spouse’s affair becomes a serious relationship and they end up marrying their new partner, your first instinct may be to keep your children away from your spouse and the person with whom they had the affair. However, when it comes to custody issues, the court is only concerned about what is in the best interest of the child. If your spouse and their new partner provide a stable and loving home environment, the court will likely grant shared custody.
What Is the Best Approach to Divorce After Adultery?
While New Jersey is a no-fault divorce state, you do have the option of filing for divorce based on your spouse’s infidelity. It is understandable to want to pursue a fault-based divorce after discovering that your spouse had an extramarital affair. However, while you may want to punish your spouse for their adulterous behavior, this type of divorce will likely be considerably more expensive, time-consuming, and emotionally draining, particularly if you have children whose health, happiness and well-being you want to protect. A no-fault, uncontested divorce will be much quicker and less expensive, and will avoid a bitter and contentious battle.
If you feel strongly about pursuing a fault-based divorce citing your spouse’s adultery, consult with an experienced divorce lawyer. They will review your case, determine whether it is in your best interest to file for a fault-based divorce, and recommend the best legal course of action going forward. Ultimately, it is unlikely that the affair will have an impact on your divorce proceedings, despite how much you may want to punish your spouse by seeking sole custody of your children or demanding a large financial settlement.
Morristown Divorce Lawyers at Lyons & Associates, P.C. Provide Skilled Legal Counsel to Clients Who Are Seeking a Divorce
If you are filing for divorce due to your spouse’s infidelity, you are urged to contact the Morristown divorce lawyers at Lyons & Associates, P.C. We will discuss the circumstances of your case, including your spouse’s affair, and recommend the legal course of action. To schedule a free, confidential consultation, call us today at 908-575-9777 or contact us online. Located in Somerville, Freehold, and Morristown, we serve clients throughout Somerset, Woodbridge, Morristown, Parsippany, Rockaway, Short Hills, Chatham, Randolph, Madison, and Morris Plains.