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Are There Legal Implications of Infidelity in a Divorce Case in NJ?
Do you suspect your spouse is having an affair, or have you been accused of having an affair by your spouse? Are you considering divorce, but don’t know whether infidelity will have any legal implications in the proceedings? If so, you aren’t alone.
Adultery may be a factor in some states when it comes to determining alimony, custody/visitation hours, or asset distribution during a divorce. To provide helpful information on this complex issue, we dive into what adultery means legally and examine the possible repercussions of this act within the Garden State’s courts.
Does Adultery Affect a Divorce Settlement in NJ?
Adultery can have an impact on your alimony. If one spouse has been found to have committed adultery, then they’ll be found to have conducted marital misconduct. This will usually mean that they either have to pay more in alimony, or to receive less in alimony if they were to be awarded an amount. (Other examples of marital misconduct include physical abuse or mental abuse.)
However, adultery won’t affect the property division in a divorce. The only exception to this would be if the adulterous spouse spent extravagantly on their affair partner and the judge rules that this should be taken into account in the asset split. Also, some adulterous spouses may try to hide their assets from the courts.
Could Adultery Negatively Affect Child Custody in a Divorce?
The short answer to this is “no.” In New Jersey, there are several offenses that could affect a judge’s custody decisions, including abuse, neglect, and drug use. However, infidelity isn’t one of those factors listed by law.
The only time this might happen is if the person the spouse is cheating with is a sex offender or abusive and is a potential risk if the parent allows them around their child. Because adultery doesn’t impact what is in the child’s best interest, it’s generally not considered in custody, visitation, or child support.
The child support payments, especially, won’t be affected by adultery. When it comes to child support, the amount is determined by a calculator that looks at the number of days each parent is with the child as well as income and the child’s needs. This last part is the most important—child support is meant to pay for a child’s actual upbringing to meet their needs for food, shelter, health, and education. It isn’t meant to be a punishment for one parent for having an affair or a reward for another parent for having dealt with an adulterer.
How Do You ‘Legally’ Prove Your Spouse Cheated?
First, you should always talk to your attorney about the best way to proceed if you believe your spouse has had or is having an affair. However, generally, you’ll need evidence of the infidelity, specifically names, dates, and places. In some cases, the spouse no longer cares who knows about the affair and is very open about the fact. If this isn’t the case, it’s likely you’ll need to get a private detective to help you get the proof you need.
In addition to this, you’ll also need one or more corroborative witnesses to support your claims in court. This would be someone such as a neighbor or friend who has information regarding the infidelity. (This might include having seen your spouse with the person they allegedly cheated with.) The important thing here is that the corroborative witness must have no stake in the case.
When it comes to proof, you don’t have to have direct evidence, but instead circumstantial evidence will usually suffice. Instead of catching your partner in the act or having a detective get photographic evidence, you can use other forms such as phone records, emails, and texts. Additionally, hotel receipts and photos sent between your spouse and his or her affair partner. All of this can provide you with evidence of an affair.
Another example of suspicious activity that can serve as evidence is if your spouse and the other person are seen in public holding hands or kissing. This can demonstrate what’s referred to as an “adulterous disposition.”
Another component of proving infidelity is opportunity. Here, you must show that the two individuals had the opportunity to have had an affair. For instance, they may have gone out of town together for a weekend, or your spouse was seen entering the other person’s home alone and not leaving until the next morning. In order to convince a judge, both disposition and opportunity need to be demonstrated.
What If I’m the One Who Had an Affair?
If you’re the spouse who had an affair, then you’ll need to realize that this may have an impact on your divorce proceedings. The truly important thing to remember here is that you need to be upfront with your divorce attorney about the affair. Your attorney is there to advise you of your rights and to advocate for you in this difficult situation. That’s why being forthcoming about the circumstances you find yourself in is the best course of action during your divorce proceedings.
Seek Legal Help for Variables in Divorces With Adultery
Infidelity is an incredibly painful experience to go through and it’s a natural response to want “payback.” However, this isn’t really a factor in many aspects of your divorce in a New Jersey court, especially when it comes to custody and child support. If you need more information on how adultery can affect your divorce, it’s important to talk to an experienced divorce attorney to understand all of your options.
Contact the Experienced Family Law Attorneys at Smedley Law Group in Woodbury, NJ Today
The New Jersey family law attorneys at Smedley Law Group represent clients throughout the state, including West Deptford, Woodbury Heights, Runnemede, and Westville during divorce and related issues. We understand how challenging this time can be for you, which is why we will fight hard to protect your interests, and the interests of your loved ones, throughout the legal process. Call us at (856) 251-0800 or fill out our confidential contact form to schedule a consultation. We have an office conveniently located at 750 Cooper Street, Woodbury, NJ 08096.
The articles on this blog are for informative purposes only and are no substitute for legal advice or an attorney-client relationship. If you are seeking legal advice, please contact our law firm directly.