Adultery in New Jersey is plead and proven in two different ways. First in the divorce complaint, you can file for a cause of action of adultery, and that means that you have identified the person with whom your spouse has committed adultery, that person is referred to as the co-respondent. You have to name the co-respondent in the divorce complaint, and you have to serve them with a copy of the divorce complaint, and they too must account for their behaviour with the spouse. Now of course, the difficulty with that is, in circumstances as you said, when you don’t know who that person is and the litigant who wants to get divorced, very much wants to prove that their spouse committed adultery.
If you don’t have the concrete proof and you can’t identify the person, you can also file based on extreme cruelty and just identify that the act of cruelty was committing adultery. Once you do that you don’t have the same stringent requirement of bringing in the third party who committed adultery with your spouse, but you do still have the requirement of proof if the issue ever got to the point of a trial.
Now in New Jersey, 98 per cent of our cases are settled, they do not actually go before a judge for a trial, so the question is often raised, well if I plead this, do I actually have to prove in the course of a trial? Most of the time when people plead in their divorce complaint, something has happened, we don’t normally litigate the history of the marriage and the reasons for the breakdown of the marriage. We usually are focused on things such as support and custody, assets, liabilities, things that has accumulated that need to be divided between the parties. But if at some point you don’t have your case settled and you’d have to go before a judge, yes you will have to prove whatever you have plead as your cause of action. If you have plead extreme cruelty and you said that adultery was the reason why your spouse was cruel to you, and you are entitled to a divorce action, you must prove adultery in some form, even if you don’t have the name of the person who was involved in the adultery.
Allison C. Williams is a matrimonial and family law attorney serving Short Hills New Jersey. Her practice places an emphasis on complex child welfare matters. www.familylawyersnewjersey.com