Your spouse has been unfaithful to you, has been physically and/or mentally abusive, or has been involved with illegal or immoral activities, and you want to file for divorce. Is the court going to take this bad behavior into consideration when deciding whether or not you have to pay alimony? The answer is possibly, but not necessarily.
In a case entitled Mani v. Mani, 183 N.J. 70 (2005), the New Jersey Supreme Court described alimony as an economic right that arises out of the marital relationship. It is intended to provide the dependent spouse with a level of support and standard of living comparable to the quality of life that he or she enjoyed during the marriage. If bad behavior by the party who is otherwise eligible for alimony has negatively affected the economic status of the marital parties, fault may be considered in calculating alimony. But if the marital misconduct does not affect the economic status quo of the parties, generally, it is not to be considered in an award of alimony. The only exceptions to this rule are cases where the potential alimony recipient is guilty of egregious fault. In the Mani case, the New Jersey Supreme Court referred to a California statute which barred alimony payments to a dependent spouse who attempted to murder the supporting spouse. Deliberately infecting the spouse with a loathsome disease was also cited by the Mani court as an example of egregious fault. In the case of Clark v. Clark, 429 N.J. Super. 61 (App. Div. 2012), the Appellate Division of the Superior Court of New Jersey further defined “egregious fault.” This lawsuit involved a situation in which the wife conceived and carried out a long-term scheme to embezzle the cash receipts from the parties’ pharmacy business. The wife’s actions were criminal in nature and demonstrated a willful and serious violation of societal norms. This type of conduct is willfully, wrong, fraudulent and purposely intended to deprive the other spouse of the economic benefits of the marital partnership, and it may serve to lessen or abolish alimony.
In the case of Puchalsky v. Puchalsky, 2014 WL 9913174 (App. Div. 2015), an unpublished opinion, the Appellate Division affirmed the trial judge’s alimony ruling. Both husband and wife were involved in income-tax evasion and healthcare fraud in the course of running a dental practice. Since both parties were involved in illicit activities, and neither party would be able to replicate their martial lifestyle irrespective of how much or how little alimony was awarded, the appellate court let stand the trial judge’s alimony award.
As unfair as it may seem to the aggrieved party, in a no-fault state such as New Jersey, the court does not generally take into consideration your spouse’s infidelity or the behavior you had to endure during your marriage, when deciding on the amount and term of alimony. Bringing these types of behavior to the judge’s attention can be valuable, however, with respect to other decisions the court must make such as custody and parenting time, for example.
So, before concluding that you may be “off the hook” in terms of paying alimony to your spouse in light of his/her bad conduct, unless that conduct causes measurable financial harm, it likely will be a negligible factor at best in considering the amount and length of alimony to be awarded.