• Dean Smith

The Role of Adultery when Divorcing a Cheating Spouse in New Jersey

Infidelity. Unfaithfulness. Cuckoldry. Stepping out. Whatever you call it, it’s a common factor leading to divorce.


Despite adultery’s prominence as a cause, the popular conception that unfaithfulness is a critical piece to one’s divorce case is not particularly accurate. The truth is infidelity is rarely cited as a specific cause, primarily because “fault” divorce settlements, where one spouse claims their partner’s misconduct (e.g., adultery, abandonment, physical or mental cruelty, or drug abuse) led to the breakdown of the marriage, is rarely a viable option. Proving infidelity to a court’s satisfaction isn’t easy, judges generally want something more conclusive than a video of your spouse leaving someone’s house.

Thus, most people don’t try. “Fault” divorces were a common mechanism in the past, but the law’s evolved over the years. Although two-thirds of states still recognize “fault divorces,” all states now include a “no fault” ground of irreconcilable differences, and most people pursue this option rather than the more difficult “fault” divorce. By keeping fault out of the argument, couples can avoid, or alleviate, the conflicts and emotional stress caused by airing their dirty laundry in divorce court. It’s an easier path, as neither party must provide information about what led to the divorce.

The third option, the no-fault ground of “separation,” has been around for a lot longer than “irreconcilable differences,” but its popularity has waned since the newer no-fault version was introduced. The law requires that spouses must have been separated for a minimum of 18 consecutive months before filing.


Alimony, Adultery, and Divorce in New Jersey


According to Susan Bishop, Esq., in New Jersey, courts only consider “fault” in limited situations. A person convicted of murder, manslaughter, criminal homicide, or aggravated assault under New Jersey law, or a similar offense in another state or country, can’t receive alimony if the crime resulted in death or serious bodily injury to either spouse’s family member. A person convicted of attempting or conspiring to commit murder can’t receive alimony from the intended victim.

Other bad acts during marriage, including adultery, may affect an alimony award, but only if the behavior negatively affected the couple’s economic situation (e.g., where a spouse used substantial marital assets to buy gifts for his or her lover), or where the misconduct was so bad that an ordinary person would recoil from the idea of the innocent spouse being forced to support the guilty one.

Although most people find the idea of adultery distasteful, it will not, by itself, automatically bar alimony: it will generally be a factor only in the presence of additional bad behavior. So, following our above example, if one spouse spent a lot of money supporting a paramour, the adultery itself would not affect alimony; but the fact that the married couple’s savings disappeared might. Or, if one spouse contributed little to the marriage and also had multiple affairs, the combination of circumstances might amount to behavior shocking enough for a judge to consider it when making an alimony decision.

Adultery and Property Division

Bishop explained that judges in New Jersey typically divide marital property in a New Jersey divorce will not consider infidelity when deciding who gets what. In rare cases, however, adultery could indirectly affect the equitable distribution of property. Courts can consider dissipation (waste) of assets, so if one spouse spent a large portion of marital funds on an adulterous relationship, this might have an impact on how a judge divides assets between spouses in a divorce; the innocent spouse may receive a greater amount of assets than the cheating spouse in order to make up for the misused funds.

A court could also consider adulterous behavior that was part of a pattern of behavior so extremely wrongful that ignoring it would be unconscionable (outrageous). While judge’s have the power to decide exactly what “extremely wrongful” means in this context, behavior shocking enough to affect property division would generally have to be something along the lines of attempted murder of the other spouse.

Adultery and Child Custody


Infidelity will not affect a custody decision in New Jersey unless the unfaithful spouse exposes the children to someone who is dangerous or who might affect them negatively. For example, if one parent allows an alcoholic or a sex offender to spend time in the home, this could affect that parent’s custody or visitation rights, regardless of the exact nature of the relationship with the objectionable person.