A couple is married for 12 years with two kids. One spouse works full-time and is away on business half of the year, the other spouse is a stay-at-home parent. The supported spouse gets involved in an extramarital affair and conceals it for a few months, until the supporting spouse catches them in the act. Understandably frustrated and betrayed, the supporting spouse contacts an attorney to file a divorce. She is surprised to learn that even though her spouse cheated, he may still be eligible for alimony because of his non-monetary contributions to the marriage, and inability to support himself, at least temporarily. Are spouses eligible for alimony if they cheated? Does adultery affect the outcome of a divorce?
Eligibility for Spousal Support
Courts determine eligibility for spousal support in New Jersey using several factors. This includes both spouses’ contributions to the marriage, a spouse’s education level, income, the need and ability of either party to pay alimony, the length of the marriage, as well as the age, and physical health of both parties. If one spouse is disabled, has not worked in over 15 years, has no formal education and no professional networking contacts, they may be eligible for indefinite alimony. If another spouse has a doctorate degree but has not practiced in over a year, the court might award them temporary alimony until they find full-time employment. Our attorneys at Eveland & Foster are available to answer your questions.
While courts used to weigh adultery as a determining factor when determining a spouse’s eligibility for spousal support, this is no longer standard practice. This is especially true if a plaintiff files for no-fault divorce. Unless the plaintiff files for divorce under the fault grounds of adultery, and proves the grounds in court, the judge cannot unilaterally weigh their testimony about an affair when deciding if the cheating spouse should receive alimony, and in what amount. This might seem fundamentally unfair. After all, your spouse cheated, why should they be rewarded with spousal support indefinitely? If you feel strongly about this, have hard evidence to prove your spouse committed adultery, and want to proceed on those grounds, that is your option. But understand that even then, your ex may still be eligible for temporary spousal support in the interim.
Adultery and Legal Recourse
You can file for divorce under the grounds of adultery, but there is a catch. You have to prove disposition and opportunity. In other words, you must prove that your spouse had both the inclination or drive to cheat, and the opportunity to act on his desires. This might be proven through evidence like phone records, bank statements showing your spouse spent large amounts on a new lover, evidence of frequent hotel stays, or surveillance of your spouse caught in the act or being intimate with their new beau. Because adultery is difficult to prove, and doing so may have no impact on the adulterous spouse’s eligibility for alimony, it often makes sense to simply file a complaint under no-fault grounds. This streamlines the process, minimizes cost and aggravation and can save you a lot of emotional stress. While it might feel good to put the blame on your spouse, or call them out in a public forum, if you do not adequately prove the grounds for adultery, you might have to appeal a divorce judgment.
What about your ex’s new lover? Can you sue them for alienation of affection, or breaking up the marriage? The short answer is No. There are only six states left in the U.S. that allow a scorned spouse to sue the person their spouse cheated on them with for breaking up the marriage. In New Jersey, the Heart Balm Act, passed in 1935, prevents a plaintiff from suing a mistress/mister in a personal injury action for causing detrimental damage to their marriage.
Call Our Attorneys at Eveland & Foster, LLC
Whether you just found out about a spouse’s affair, or have finally decided you will no longer tolerate your infidelity, know that you are not alone. Coming to terms with the end of your marriage or partnership is painful, emotionally wrenching, and private. Our attorneys at Eveland and Foster understand the sensitive nature of divorce and adultery. We only represent clients facing a family law issue, and we pride ourselves in providing our clients tailored advice for their specific dilemma. If retained, we will advocate for your interests and counsel you toward the best solution. While it may feel isolating, know that you are not alone. Our attorneys are standing by to help you. Call today to schedule a consultation and discuss your options.
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