If I Had An Affair, Am I At Fault For Our Divorce?

I had an affair. My wife says I am at fault and she plans to take all the property in the divorce. Will she get everything?

By Brad Micklin
September 24, 2015

Brad Micklin, a family lawyer in Nutley, answers:

New Jersey is a “no-fault” divorce state. The public policy in this state favors allowing a spouse to dissolve a marriage that he or she no longer wishes to be in without having to prove wrongful conduct on the part of the other spouse. No one benefits from being forced to stay in an unhappy marriage, particularly not children. Additionally, courts are not permitted to consider “fault,” such as adultery, as a factor in deciding issues of support and equitable distribution absent extreme circumstances.

The only time fault will play a role in support or division of assets is if it is extreme. The most common example is if there is a significant dissipation of marital income or assets that is directly traceable to a non-marital purpose, such as lavish spending on a significant other or siphoning joint marital funds to a non-marital account.

Another example is a divorce that involves a “Tevis claim.” A spouse may seek damages for financial or physical/personal injury or abuse sustained during the marriage. It is so named because of the 1979 Supreme Court case of Tevis v. Tevis. The claim must be filed together with the divorce or dissolution action, although the court may later separate the two actions into two cases for separate trials.

The above two examples can be very difficult to prove and are the exception to the rule. The general allegation that one spouse is "the cause" of the marital problems is never a basis for a court to decide issues of support and equitable distribution of debts and assets.

Brad Micklin is a family lawyer in Nutley, NJ.

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September 24, 2015

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