Does marital fault affect a person’s right to receive alimony. The short answer is no…in most cases. Before discussing what exactly is meant by fault grounds, it will be helpful to define alimony. Alimony or spousal support (the terms are used interchangeably) is the payment by one spouse to the other spouse of a sum of money after the divorce is finalized. The amount, duration, and basis of alimony depends upon a number of factors which can be found at N.J.S. 2A: 34-23. An in depth discussion of the factors are beyond the scope of this article. However, the oft cited factors include the length of the marriage, each spouse’s age, a spouse’s health, the financial resources each spouse expects to have after the marriage, and the parties’ standard of living during the marriage.
Absent from the list of factors usually considered by court are most fault grounds. For example, if a spouse is engaging in an adulterous affair, should this affair be considered in determining whether or how much alimony that spouse will have to pay to the other spouse after their divorce. The short answer is no, courts generally do not consider marital fault in connection with the determination of most alimony awards.
There are, however, instances where marital fault can affect alimony. In the case of “Mani v. Mani, 183 N.J. 70 (2005), the New Jersey Supreme Court laid out two narrow categories of marital fault that can be considered by a court in connection with the determination of an alimony award. The first category involves “marital fault [that] has negatively affected the economic status of the parties.” Although the Court would not limited the circumstances in which a spouse’s marital fault could affect the economic status of the parties, it held that as an “example, if a spouse gambles away all savings and retirement funds, and the assets are inadequate to allow the other spouse to recoup her share, an appropriate savings and retirement component may be included in the alimony award.”
The second category involves the extremely narrow band of cases in which a spouse engages in “egregious fault, which the Court explained is “some conduct, [that] by its very nature is so outrageous that it can be said to violate the social contract, such that society would not abide continuing the economic bonds between the parties.” Examples provided by the Court include barring a spouse from being required to make “alimony payments to a dependent spouse who has attempted to murder the supporting spouse” or to a spouse who has deliberately infected a spouse with a “loathsome disease.” The Court further held that “[i]n the extremely narrow class of cases in which such conduct occurs, it may be considered by the court, not in calculating an alimony award, but in the initial determination of whether alimony should be allowed at all.” As such, it is a limitation of a payee spouse’s right to receive alimony, not necessarily a payor spouse’s obligation to pay alimony.
As with most issues in family law, marital fault is highly fact dependent. Although it is rare that marital fault is a consideration in the determination of alimony, a divorcing spouse is always well served by speaking to an experienced family lawyer at the inception of a case. In the extremely rare case where marital fault could affect alimony, each spouse should address the issues at the inception of the case.