A divorce case in North Carolina made headlines recently when a judge ruled that an ex-husband was entitled to monetary restitution from his ex-wife’s paramour under the state’s “homewrecker” laws. Dating back to the 18th century, these laws allow a scorned spouse to sue their spouse’s lover for breaking up a happy home.
Could a case like this ever happen in New Jersey?
North Carolina and a small handful of states still have so-called “heart balm” laws, where the courts can apply sanctions for the emotional injury of one spouse cheating. New Jersey is not one of these states. But that doesn’t mean that infidelity can’t affect the outcome of a divorce settlement.
If adultery a contributing factor in your divorce, you have the right to recoup monetary damages the cheating may have inflicted. Here’s how.
Marital Tort: Dissipation of Marital Assets
At the time a couple divorces, a separate “tort claim” can be filed to recoup monetary damages for certain spousal wrongdoing during the marriage. There are a number of different marital tort grounds available in New Jersey. One that is particularly relevant to a divorce that involves cheating is the tort of marital asset dissipation.
Dissipation of assets (waste of assets) occurs when one spouse has given away or otherwise transferred, mismanaged, converted, or otherwise adversely affected property that should be subject to equitable distribution. This can include wasting marital funds for the benefit of an extramarital lover, such as significant gifts, hotel rooms, rent for an apartment, airline tickets, and other extravagances.
If the court finds that dissipation has occurred, a typical remedy is to adjust division of marital property to offset the dissipation. For example, if the courts can see from joint credit card receipts, bank statements and other financial records that a cheating spouse spent approximately $20,000 on their paramour from marital income and assets, the wronged spouse may received $20K more in home equity to make up for this, or could receive liquid cash if available.
If the cheating spouse passed a STD to the other spouse at any time during the marriage, this can also be grounds for financial compensation as a marital tort.
Adultery can affect alimony
According to New Jersey alimony rules, committing adultery does not automatically disqualify someone from receiving alimony. However (and this is a big however!), adultery CAN be taken into consideration as a factor in determining alimony amounts.
For example, if the spouse who committed the act of adultery was receiving financial support from the person with whom the affair was being conducted, the court may attempt to determine whether the economic benefits from the affair justifies a reduction or even elimination of alimony. If it shown to the courts that the spouse having the affair was gifted with expensive clothes, trips and excessive spending money, their alimony award may be reduced or even denied, depending on the circumstances.
Cheating clauses in prenuptial agreements
Some prenuptial agreements include a “cheating clause” that cancels or changes the agreement if one spouse has an extramarital affair, or assigns a financial penalty. Dig out your prenup (or postnuptial agreement). Does it include any language around what happens if a spouse has an affair, what the burden of proof is, and what the penalty is for cheating? This is information to show to your attorney for help enforcing the terms.
Does cheating affect custody decisions?
Infidelity generally does not affect decisions about custody arrangements unless the unfaithful spouse exposes the children to someone who is dangerous or who might affect them negatively. For example, if one parent allows an alcoholic or a sex offender to spend time in the home, this could affect that parent’s custody or visitation rights, regardless of the exact nature of the relationship with the objectionable person.
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