Edward R. Weinstein, Esq.

Are Cheating Spouses “Punished” In a New Jersey Divorce?

Many folks that I grew up with here in East Brunswick, New Jersey, know that I am a family law and divorce attorney, and my law firm is here in my hometown. To that end, shortly after the Ashley Madison hacking story broke, a good friend I have known for almost 40 years posted an article on my Facebook wall titled, “Divorce Judges Don’t Care If You Cheat.” Now, as an experienced lawyer in this field I am well aware that New Jersey Family Courts usually will not consider marital fault in alimony determinations. However, based upon some of the comments on this Facebook post by other friends and text messages I received from others, it suddenly became clear to me that many people mistakenly assume that if their partner cheated on them, they will no longer be responsible for alimony. Courts tend to determine alimony based on financial dependency rather than marital fault.  Please enjoy today’s blog.

NJ Divorce Lawyer

NJ Divorce Lawyer

Mani v. Mani, established as a rule of law, that marital fault will only be considered when the fault had a significant effect on the parties’ economic status, or was so appalling that awarding alimony would be unjust. In the decision, the Supreme Court of New Jersey literally used attempted murder of one’s spouse as an example of a rare case of appalling or “egregious” fault. While many of my colleagues agree that adultery can make settlement of a divorce case extremely difficult due to the heightened emotions involved with betrayal, New Jersey is a “no-fault” divorce state.

In the Mani case, the parties met in 1970. Brenda Mani started working for her future husband, James Mani, at his seasonal amusement business on the Seaside Heights boardwalk. In addition to being part-owner of the boardwalk business, James was also a partner in Florida based travel agency. Brenda graduated from college in 1971, and began teaching preschool while working with James during the summer.

The couple purchased their first home prior to their marriage in in 1973. They contributed $5000-$6000, jointly from profits from the boardwalk business. The remaining $25,000 was financed through a mortgage held by the wife’s father, who also gave her significant gifts of money and investments during the early years of the marriage. These gifts included checks for $10,000 a year and tax-free bonds, which like the marital home remained in the Brenda’s name.

In 1981, Brenda’s father gave her a gift of stock in the family owned business, Ultimate Corporation. However, a condition on the gift that her husband sign a waiver that he was not entitled to share in the stock. As it became clear the boardwalk business was not sufficient to support the couple’s increasingly comfortable lifestyle, Brenda began dipping into her investment income.

Brenda began to sell her shares of Ultimate Corporation, and purchased tax-free bonds in her own name. While she discussed her investments with her husband, Brenda contended she made all stock sales under the directions of her father, broker, and financial adviser. Conversely, James claims that he was the actual drive effecting the sales.

The couple purchased a second home for $ 145,000 in 1986, using proceeds from Brenda’s Ultimate stock and $129,000 from the sale of their prior home. While the property was conveyed to the couple as husband and wife, the title was later transferred to Brenda. The existing house on the lot was leveled and the couple spent between $ 500,000 and $ 750,000 on an extravagant new home.

While the couple retired from the boardwalk business in 1993, they continued their lavish lifestyle. Relying almost exclusively on Brenda’s investment income, the couple spent roughly $ 7,360 to $ 13,143 a month.

After seven years together in retirement Brenda became aware that her husband was having an affair. Brenda filed for divorce alleging adultery and extreme cruelty. James in turn filed a motion for pendente lite relief. Pendente lite means “awaiting the litigation” or “pending the litigation”. In otherwords, pendente lite order is temporary in nature and is often used to provide for the support of the lower income spouse while the legal process moves ahead. Here, the trial judge granted James’s motion and awarded $1,006 per week as spousal support and $ 7,000 as counsel fees.

When the case proceeded to trial James claimed he was entitled to a permanent alimony award of $ 68,320 per year. Brenda countered that her husband was not entitled to any alimony at all. At the time of trial Brenda’s assets were valued at $ 2.4 million. James’s assets were meager in comparison: an IRA worth $ 80,000 and a shared property interest from his father’s estate valued at $ 50,000.

The trial judge ordered the marital home was subject to equitable distribution, and determined James’s was entitled to thirty percent of the net profits, amounting to $ 141,000. However, in finding that James’s investment advice was “of little significance and import,” and that it was not responsible nor effected the growing of his wife’s assets, Brenda’s remaining assets were declared untouchable.

In regards to alimony, James was awarded $ 610 per week due “in substantial part on the defendant’s economic dependency.” Unsurprisingly, James appealed, contending that the alimony award was insufficient to maintain the standard of life he enjoyed during marriage. He further appealed that we was entitled to half of the sale proceeds, and that counsel fees should have been awarded based on his “need, good faith, and Brenda’s superior ability to pay.”

In her cross appeal, Brenda argued that her husband was only entitled to sixteen percent of the purchase price of the home as that was the percentage attributable to the sale of their previous home. Additionally, she contended because his economic dependency was based on his own “indolence” rather that the marriage itself, James was not entitled to any alimony at all.

The Appellate Division affirmed the trial court’s decision and held there was sufficient evidence to support the permanent alimony award. Even though the award may have been insufficient for James to enjoy the extravagant lifestyle he once relished, the Appellate Division found the reduction justified because he committed adultery and acts of extreme cruelty. Moreover, the trial judge properly exercised his discretion in distributing the interests in the home, and the denial of counsel fee was proper because James’s received a generous pendent lite award and the finding of marital fault. While the trial court did not specifically mention adultery and extreme cruelty as factors in the alimony analysis, according to the Appellate Division, James’s adultery was significant and warranted consideration in the amount of the award.

Upon James’s request, the Supreme Court of New Jersey agreed to review the case on issues of alimony and counsel fees. The New Jersey State Bar Association thought the issues at hand were so important to the future of New Jersey law, it requested to join the case and was granted amicus curiae status. Amicus curiae literally means “friend of the court” and is granted to someone who is neither a party to a case, nor has been solicited by any of the parties to assist. This status is used as a way to introduce concerns ensuring the possibly broad legal effects of a court decision will not depend solely on the parties directly involved in the case, and to help the court by clarifying the law impartially.

James asked the Court to establish, as rule of law, that fault should play no part in an alimony determination or award of counsel fees. James contends that courts are abiding by that rule as a matter of practice, and the Appellate Division was wrong in changing this practice by bringing fault into the analysis.

The Supreme Court held that marital fault is irrelevant to alimony except when: the fault had an effect on the economic status of the married couple, and when the fault “violates social norms,” and would make the alimony award unjust. In regards to counsel fee awards, marital fault is completely irrelevant.

New Jersey Statute 2A:34-23(b) provides a list of factors a court shall consider when ordering alimony. Nowhere in the statute do the words “marital fault” appear. There is however a “catch all” provision that could arguably allow a court to consider any other factor it “may deem relevant.” A “catch all” provision is intended to cover all possibilities not covered by individual terms. The statues ultimately guides the court to determine alimony in a way that is “fit, reasonable and just.” The courts have refused to make a wide use of fault in the “catch all” context. In Kinsella v. Kinsella, the New Jersey Supreme Court stated the focus of alimony determination is generally on the financial situation of the parties, and marital fault rarely enters into the equation. Because there was neither an allegation that James’s marital fault had any negative economic impact, nor was it outstandingly shocking or appalling, the New Jersey Supreme Court sent the case back to the Appellate Division for a recalculating of alimony without any regard to marital fault. For more information on this issue, please contact my office today.