The average person tries to avoid drama and conflict whenever possible, which is why it's not surprising that the majority of divorces are filed as “no fault”. No fault divorces on the grounds of separation or irreconcilable differences are usually resolved quietly through private methods such as mediation and collaborative divorce. On the other hand, “at fault” divorces require going to court, since they involve highly contentious circumstances such as adultery, substance abuse and domestic violence. Considering the high cost of going to trial, not to mention the human costs, especially for your children, you may be wondering if a fault-based divorce is truly in your best interest.
This is a particularly important question when it comes to adultery, which is the act of engaging in a physically intimate relationship with someone outside the marriage. The basis of an adultery filing is that an extramarital relationship has caused irreparable damage to the marriage with no hope of reconciliation. One benefit of filing for adultery is that there is no waiting period to file, whereas no fault filings have waiting periods of 6 to 18 months. However, an adultery petition is extremely involved, because it requires you to submit proof of your spouse's extramarital conduct. The proof, by the way, must be concrete facts such as dates, times and places in which the adultery occurred, which will need to be supported by documentation in the form of receipts, emails, etc.
Another tricky aspect of an adultery filing is that you will need to name the person with whom your spouse had the affair. You will be required to service this person with a Notice to Corespondent, which will give him or her the opportunity to respond to your accusations in court. You can imagine the type of hostility these actions will cause, especially if you and your spouse are already on bad terms. That factor alone is enough to convince most people to file as no-fault, but an adultery filing may be helpful in the case of alimony. If your spouse's cheating was grossly distasteful, or caused significant damage to your finances, that may be a reason to deny or reduce alimony. The circumstances would have to be pretty extreme, so just the fact that your spouse had an affair, or even multiple affairs, isn't going to have any impact. If, however, your spouse spent most of the money in your savings accounts to fund his or her extramarital activities, that may be considered an extreme circumstance.
Aside to the issue of alimony, adultery plays virtually no part in the determination of other divorce-related issues such as custody and property division. Ultimately, the question of whether it's worth it to file for adultery requires a thorough examination of your marriage, as well as a clear understanding of New Jersey's divorce laws and trial procedures. For more information on the divorce filing process in New Jersey, please speak with the experienced divorce attorneys of Villani & DeLuca, P.C.