2/3/2022

My Spouse Cheated. Does This Mean I Can Get More Money in Our Divorce?

     Few things make the divorce process more emotional than it already is than when one spouse has been unfaithful in the marriage – particularly if the affair was recent and was the “reason” the marriage is ending in divorce.  The betrayed spouse is understandably raw with emotion and may have difficulty navigating the divorce process with a clear head when they feel buried in grief, shock and anger.  Meanwhile, the spouse who had the affair may be cooperative and riddled with guilt or may instead be self-absorbed in their new relationship and insensitive to the emotional damage severely affecting the other’s ability to “move on.”  To add to the complicated dynamics, well-meaning loved ones are often in ears of the betrayed spouse encouraging them to “take him to the cleaners” as punishment for cheating and ruining the marriage and family. 

     With all of that already happening behind the scenes, we family law attorneys often find ourselves at an initial consultation with a potential client (and sometimes members of their emotional support system) being presented with some version of the following statement: “He cheated on me.  I want to get everything I can for it.  The kids and I should not have to change our life at all.  This is his fault.”  Sometimes we will even hear variations of, “And he’s not taking these kids overnight.  Or getting them on Christmas.  Or taking them on vacations away from me.”

     As attorneys who pride ourselves on telling clients what they need to hear even if it’s not what they want to hear, we must then brace ourselves for a second and advise them that in the state of New Jersey, with few exceptions, their spouse’s infidelity will make no difference in who gets what in the divorce.

     (Cue the wide eyes, the supportive best friend wondering if they should get a second opinion from a more “aggressive” attorney her other friend used and/or the tagalong mother saying, “but this divorce is his fault!”)

     Regardless of whether this may seem “fair,” this is just how it is.  New Jersey is known as a “No Fault” divorce state.  It actually makes a lot of sense once emotions are removed from the reasoning behind this.  The reality is that we have an incredibly overwhelmed court system as it is.  If our family law judges are tasked with the responsibility of determining whose “fault” the demise of a marriage is, we would need a courthouse on every corner.  Our judges cannot possibly focus on which spouse caused the marriage to end when, let’s face it, a lot of things cause a marriage to end.  The breakdown of a relationship and marriage is complicated and usually stems from a lot of different things that have occurred over time. 

     The fact that New Jersey is a “no fault” state also protects you from needlessly harming yourself further by prohibiting you from wasting your funds on litigating who is at fault for the failure of your marriage.  Such a process would just snowball the emotional toll of your divorce for everyone involved and it would make it emotionally, psychologically and financially more difficult to move on to the next chapter of your life in a healthy and stable manner.

     Now I did say that there are some exceptions to this general rule of law and some of you are probably wondering what those exceptions are – perhaps hoping they apply to you.  Your attorney can speak with you at length about whether any exceptions will apply to your case, but here they are in a nutshell:

     (1)  Whether your spouse spent marital funds on the affair and you are therefore owed a credit for some of the money spent.  (ex: on gifts, getaways, etc.);

     (2)  Whether you have contracted a sexually transmitted disease from your spouse because of the affair (which may entitle you to financial damages);

     (3) Whether your spouse showed such poor judgement with your children with regard to the affair that it should be considered when determining a custody and parenting time arrangement that is in the best interest of the children.

         (Before you assume that a judge will believe that marital infidelity itself should be relevant in weighing the best interest of the children, let me give you an example of the one time in my entire career that this actually made such a difference in one of my cases. Dad was having an affair for two years.   During the that period of time, while Mom was busy taking care of her ill father, Dad brought the children to spend time with his girlfriend.For two years, the children were forced to spend time with their father’s girlfriend and keep it a secret from their mother.This is the level of extreme I am talking about.)

     Once we are familiar with the details of your circumstances, we can advise you whether and to what extent any such exceptions may apply to your case.  However, the analysis usually does not end there.  We will also discuss whether it would be worth your time, money and emotional energy to go down the expensive road of making this argument.  What you might receive even if “successful” might be similar or much less than the thousands of extra dollars in attorney and/or expert fees expended to help you “win.”   

     Look, no attorney who has dedicated their career to family law wants to ignore or minimize the intense trauma of experiencing your marriage end after an affair.  At our firm, we feel honored to help everyday good people get through one of the most painful and stressful periods of their life.  However, part of helping you through to the next chapter of your life in a healthy way is advising (and perhaps repeatedly reminding you) that being betrayed by your spouse does not mean you will benefit financially in the resulting divorce.