New Jersey is an equitable distribution state; we are not a community property state. Therefore, what is equitable in one set of circumstances may be very different than in another set of circumstances.
So, you have to look at how your overall financial relationship has been changed or been adversely impacted by the behavior of your partner. So, there are times when a court would award one party more of the martial estate as a result of the squandering of the resources by another party. For instance: let’s say your spouse is gambling away the marital estate or perhaps, that your spouse has become addicted to sex and has extramarital affairs and spends on that behavior outside the marriage. In those cases, the court can very well apportion more of the marital estate to one party versus another.
Normally we see that when you have a party who is truly economically dependent upon his or her spouse (much more often than not it is the wife dependent on the husband even though that is now changing in current days), like in which you have a stay at home mother and her husband is the sole financial support for the family, she’s often not going to be able to earn at the same level of her spouse when they get divorced. And so, she’s already having an adverse consequence simply by virtue of the marriage falling apart.
But if what would otherwise be her ability to fund her lifestyle and live a comparable lifestyle is based on equitable distribution of assets, and he takes the assets and spends them on some illicit purpose that was not something that she agreed upon during the course of the relationship, one could assert that she has been even harmed more by virtue of his behavior. So, some judges will afford that type of credit.
Many times judges say we take the good and we take the bad in a marriage, and so you’re not more entitled to a credit for a greater portion of the assets simply because your spouse engaged in behavior you didn’t agree with. Because on the flip side, one could argue that perhaps she was spending on things that her husband didn’t agree on in the marriage, but he had to tolerate that so similarly, she should have to tolerate spending on his addiction because he’s impaired and has a mental health condition. So, it varies greatly from court to court. It varies greatly from attorney to attorney in terms of how zealously they will assert that position.
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