How does infidelity affect divorce proceedings in New Jersey?

In light of the Ashley Madison data breach, many people in New Jersey may be wondering how courts take infidelity into account during divorce.

As many as 37 million people’s email addresses have linked to a website famous for enabling married people in New Jersey and around the country to cheat on their spouses. According to Reuters, hackers broke into the infidelity site Ashley Madison, exposing millions of people who have been allegedly searching for an extramarital affair.

Experts immediately presumed that divorce attorneys would be receiving an increase in phone calls. But how exactly does infidelity play into the legal ramifications of a divorce?

Cause of action

The most significant way an affair can affect a divorce is when a spouse decides to file and has to choose a cause of action. Proving fault in a divorce in New Jersey is no longer necessary, though someone may cite marital misconduct as a reason for divorce. The law outlines several behaviors that constitute misconduct, such as the following:

  • Adultery
  • Extreme cruelty, such as abuse
  • Willful desertion
  • Drug addiction or mental illness
  • Imprisonment or criminal sexual activity

If a spouse chooses adultery as the cause of action, he or she may be asked to name the person with whom the other spouse had the affair. Further, the court might want information regarding dates or places associated with the infidelity. The person with whom the spouse had an affair will likely have to appear in court.

Often, people choose to file for a no-fault divorce instead of highlighting adultery as the cause. This would mean listing “irreconcilable differences” as the cause of action. This is a growing trend, especially because adultery typically has little bearing on other factors associated with divorce.

Alimony or property division

It is rare that an extramarital affair would play a role in either dividing property or determining the amount of spousal support that may be offered. However, it is possible that if the infidelity had an adverse effect on the couple’s finances, a court could rule differently.

For example, if a spouse went on lavish trips and bought expensive gifts for a love interest outside the marriage, a judge could rule that the value of those expenditures should play a role in property division. It is also possible that a spouse could use a girlfriend or boyfriend to hide assets, such as loaning money or created an account in that person’s name to hide cash. Upon discovery, the courts could factor the dishonesty into the property division for the other spouse.

Child custody

New Jersey laws regarding child custody and support list a number of factors that could affect a judge’s decision, but none of those includes an extramarital affair. Only in rare circumstances could infidelity play a role. For example, if a spouse has an affair with a person who is a sex offender or abusive, a court may decide that a custody arrangement involving time with that spouse could expose the children to a dangerous person.

Even though infidelity may not necessarily affect the outcome of a divorce, it is certainly grounds enough to cause a spouse to want to end a marriage. Anyone who has suffered the emotional anguish of a cheating spouse should contact a divorce attorney.


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