Marital Misconduct and Alimony

Decisional law in New Jersey has long expressed the view that alimony is neither a punishment for the payor nor a reward for the payee. Aronson v. Aronson, 245 N.J. Super. 354, 364 (App. Div.1991). Rather, it is an economic right that arises out of the marital relationship that provides a dependent spouse with a level of support and standard of living commensurate with the quality of economic life that existed during the marriage. Stiffler v. Stiffler, 304 N.J. Super 96, 99 (Ch. Div.1997) (quoting Koelble v. Koeble, 261 N.J. Super. 190, 192-93 (App. Div. 1992)).

In all divorce actions, the court may award one or more of the following types of alimony: permanent, rehabilitative, limited-duration, or reimbursement alimony to either party. In so doing, a court shall consider 13 factors. N.J.S.A. 2A:34-23(b). The court must consider:

• The actual need and ability of the parties to pay;
• The duration of the marriage;
• The age, and physical and emotional health of the parties;
• The standard of living established in the marriage and the likelihood that each party can maintain a reasonably comparable standard of living;
• The earning capacities, educational levels, vocational skills, and employability of the parties;
• The length of absence from the job market of the party seeking maintenance;
• The parental responsibilities for the children;
• The time and expense necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment, the availability for the training and employment, and the opportunity for future acquisitions of capital assets and income;
• The history of the financial or non-financial contributions to the marriage by each party including contributions to the care and education of the children and interruption of personal careers or educational opportunities;
• The equitable distribution of property ordered and any payouts on equitable distribution, directly or indirectly, or of current income, to the extent this consideration is reasonable, just and fair;
• The income available to either party through investment of any assets held by that party;
• The tax treatment and consequences to both parties of any alimony award, including the designation of all or a portion of the payment as a non-taxable payment; and
• Any other factors that the court may deem relevant.

The Impact of Marital Misconduct on Alimony

While marital misconduct is not enumerated as a specific factor to be weighed by the court in determining alimony, factor number 13 is considered a general 'catch-all' consideration that permits the court to consider any other factors that may be relevant. In addition, N.J.S.A. 2A:34-23(g) provides, 'In actions for divorce other than those where judgment is granted solely on the grounds of separation, the court may consider also the proofs made in establishing such ground in determining an amount of alimony or maintenance that is fit, reasonable and just.' Id. Therefore, prior to the recent New Jersey Supreme Court decision in Mani v. Mani, 183 N.J. 70 (2005), sections 2A:34-23(b)(13) and 2A:34-23(g) of the New Jersey Statutes left open to question the circumstances under which an adulterous relationship could be a bar to the dependent spouse's application for alimony. Mani, 183 N.J. at 93.

In the early reported decision of Lum v. Lum, 138 N.J. Eq. 198 (N.J. Ch. 1946), the court held that a husband's duty to support his wife is extinguished when she commits marital misconduct. Likewise, in Mahne v. Mahne, 147 N.J. Super. 326 (App. Div. 1977), the Appellate Division confirmed the previous long-established rule that a wife guilty of adultery should not be entitled to alimony.

However, as society has evolved, New Jersey case law has relaxed its stringent stance, and has permitted alimony awards to dependent spouses who have committed adultery. See Nochenson v. Nochenson, 148 N.J. Super. 448 (App. Div. 1997). This change became quite clear after the New Jersey Appellate Division rulings in the cases of Lynn v. Lynn, 165 N.J. Super. 328 (App. Div. 1979) and Gugliotta v. Gugliotta, 164 N.J. Super 139 (App. Div. 1978).

In Lynn, the Appellate Division reversed the trial court's ruling and found that under the circumstances in that case, the adulterous conduct was not so egregious as to preclude an alimony award. Lynn, 165 N.J. Super. at 328. Likewise, in Gugliotta the Appellate Division affirmed the trial court's decision to award alimony to the defendant-adulteress. Gugliotta, 164 N.J. Super at 140. The reviewing panel clarified that the trial court properly evaluated the illicit affair and considered it in the context of the marriage and held under the circumstances 'the many years of the marriage relationship and the parties' emotional investment in the marriage far outweighed the effect of the adultery insofar as it related to the wife's entitlement to alimony.' Id.

Marital Fault

Presently in the state of New Jersey, except in the rarest of instances, marital fault is not a consideration for a court in determining the right to receive alimony. Mani, 183 N.J. at 93. Such instances may include situations where one spouse attempts to murder the other spouse or where one spouse deliberately infects the other spouse with a disease. Id.

The Mani court stated in no uncertain terms that alimony determinations are a purely economic analysis. Factually, in Mani the trial court ordered the wife to pay the husband $610 per week in alimony. The wife appealed, claiming that she should not be compelled to pay alimony because the husband had engaged in an affair with a woman with whom the parties socialized.

Justice Long ruled that '[b]y delimiting the kinds of fault that may be taken into account in an alimony calculus, we have not only created a template for uniformity and predictability in decision-making, but have relieved matrimonial litigants and their counsel from the need to act upon the nearly universal and practically irresistible urge for retribution that follows on the heels of a broken marriage.' Id. The court held, 'that marital fault is irrelevant to alimony except in two narrow instances: cases in which the fault has affected the parties' economic life and cases in which the fault so violates societal norms that continuing the economic bonds between the parties would confound notions of simple justice. The former may be considered in the calculation of alimony and the latter in connection with the initial determination of whether alimony should be allowed at all.' Id. at 72.

The lone dissenting Justice disagreed, in part, because the alimony statute, N.J.S.A. 2A:34-23(g) provides that, 'In all actions for divorce other than those where judgment is granted solely on the ground of separation the court may consider also the proofs made in establishing such ground in determining an amount of alimony or maintenance that is fit, reasonable and just.'

This ruling was immediately cited in the unpublished Appellate Division decision of Egan v. Egan, 2005 WL 2877794 (N.J. Super. A.D.). In Egan, the husband appealed an alimony award on the grounds that the wife had moved out of the marital home and in with her paramour. The Appellate Division cited the Mani decision in affirming the trial court which did not find that the wife's conduct had a negative economic impact on the parties.

In New Jersey the Mani decision may result in more streamlined and less costly divorce litigations. Lawyers may no longer need to spend many hours drafting detailed complaints, setting forth claims for 'extreme cruelty.' Prospectively, under Mani, a judge will not rely on the allegations, no matter how specific, lengthy, carefully drafted or egregious in determining alimony. Since approximately 97% of all divorce cases in New Jersey are resolved without the necessity of a final decision by a judge, the resolution of divorce cases may also become more efficient due to the parties not having the need to dredge up all of the unpleasant things done to each other during the course of the marriage.

Impact on the Client's Psyche

Although adultery is no longer a consideration as it relates to alimony, a practitioner is still left to explain to the angry client who feels hurt and betrayed by the adulterous spouse why that spouse should not suffer economic consequences as a result of his/her behavior.

According to a poll of some New Jersey psychologists, this dilemma for the practitioner is not uncommon. In fact, clinical psychologists who were polled agree that adultery creates such a profound sense of betrayal and narcissistic injury that it greatly impedes the wounded person's ability to see any good in the other person and therefore may prohibit or hinder the parties from amicably resolving their divorce. In a recent unpublished article prepared by clinical and forensic psychologist, Marcy Pasternak, entitled 'Helping Your Matrimonial Client Negotiate the Divorce Process & Concomitant Emotional Issues,' the client's need for psychological counseling during a divorce proceeding continues to be a prevalent issue that practitioners should recognize. Dr. Pasternak's article offers prudent advice and general information to the practitioner as to how to recognize effectively when a client's emotional state may call for a recommendation to seek counseling.

It is not uncommon to represent a client who finds himself/herself thrust into a divorce that he/she did not initiate or want. As a party to the divorce process, however, he/she must pass through the necessary steps dictated by the legal process. However, when emotionally laden issues are at the forefront, it may be a challenge to follow through on what is required. A client's emotional state may make it difficult for counsel to guide the client through the process so as to best serve his or her needs.

According to some psychologists, when clients have not initiated a divorce or do not want it to occur, they are usually in a very different phase of attachment to the marriage and the marital partner than the soon-to-be ex-spouse. While the other party may be emotionally disengaged or have 'one foot out the door' this individual may feel devastated, shocked, and/or may be in denial. Depression and a sudden compromise in everyday functioning are not uncommon. Until this party is better able to cope with the reality of the divorce, it may be difficult to proceed at the rate that may be necessary or beneficial.

It is very important for the attorney representing such a client to recognize when this may be occurring. A very supportive stance on the part of the attorney is indicated. However, many times the support that any attorney is able to give is not enough. According to psychologists, for some individuals, there may be a need for professional help, and a referral to a therapist may be in order. This is especially the case when there has been a prior psychiatric history.

According to psychologists, this notion of seeking individual therapy may be presented to the client, as a very positive choice that can help support him/her through this very difficult process. It would be helpful for the attorney to normalize the need for such support by noting that it is not uncommon to need this type of assistance. Seeking professional assistance represents a prospective stance, and doing so may empower a client who otherwise feels helpless. Once a client is engaged in therapy, it may be easier for him/her to focus on the business of divorce in a less painful way. Clients might also be better able to make appropriate decisions when they are in better control of their feelings and impulses. In addition, encouraging the client to mobilize a support system can be quite helpful. Engaging relatives and friends, and joining support groups in the community may help the divorcing individual to feel less isolated. It is helpful for attorneys to stress to clients who are having a difficult time coping that it is important for them to take care of themselves. This will help them to negotiate the divorce process in the best way possible, and will also enable them to be more effective parents to their children. Pasternak, Id.

Lynne Strober, a member of this newsletter's Board of Editors, is a partner in the West Orange, NJ, firm of Mandelbaum Salsburg Gold Lazaris & Discenza, PC. She co-chairs the firm's Family Law Department, handling all aspects of divorce litigation, including complex equitable distribution matters, alimony, child support, child custody, parenting time, pre-nuptial agreements and adoptions. She is a Fellow of the American Academy of Matrimonial Lawyers, New Jersey Chapter.

Decisional law in New Jersey has long expressed the view that alimony is neither a punishment for the payor nor a reward for the payee. Aronson v. Aronson , 245 N.J. Super. 354, 364 (App. Div.1991). Rather, it is an economic right that arises out of the marital relationship that provides a dependent spouse with a level of support and standard of living commensurate with the quality of economic life that existed during the marriage. Stiffler v. Stiffler, 304 N.J. Super 96, 99 (Ch. Div.1997) (quoting Koelble v. Koeble, 261 N.J. Super. 190, 192-93 (App. Div. 1992)).

In all divorce actions, the court may award one or more of the following types of alimony: permanent, rehabilitative, limited-duration, or reimbursement alimony to either party. In so doing, a court shall consider 13 factors. N.J.S.A. 2A:34-23(b). The court must consider:

• The actual need and ability of the parties to pay;
• The duration of the marriage;
• The age, and physical and emotional health of the parties;
• The standard of living established in the marriage and the likelihood that each party can maintain a reasonably comparable standard of living;
• The earning capacities, educational levels, vocational skills, and employability of the parties;
• The length of absence from the job market of the party seeking maintenance;
• The parental responsibilities for the children;
• The time and expense necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment, the availability for the training and employment, and the opportunity for future acquisitions of capital assets and income;
• The history of the financial or non-financial contributions to the marriage by each party including contributions to the care and education of the children and interruption of personal careers or educational opportunities;
• The equitable distribution of property ordered and any payouts on equitable distribution, directly or indirectly, or of current income, to the extent this consideration is reasonable, just and fair;
• The income available to either party through investment of any assets held by that party;
• The tax treatment and consequences to both parties of any alimony award, including the designation of all or a portion of the payment as a non-taxable payment; and
• Any other factors that the court may deem relevant.

The Impact of Marital Misconduct on Alimony

While marital misconduct is not enumerated as a specific factor to be weighed by the court in determining alimony, factor number 13 is considered a general 'catch-all' consideration that permits the court to consider any other factors that may be relevant. In addition, N.J.S.A. 2A:34-23(g) provides, 'In actions for divorce other than those where judgment is granted solely on the grounds of separation, the court may consider also the proofs made in establishing such ground in determining an amount of alimony or maintenance that is fit, reasonable and just.' Id. Therefore, prior to the recent New Jersey Supreme Court decision in Mani v. Mani , 183 N.J. 70 (2005), sections 2A:34-23(b)(13) and 2A:34-23(g) of the New Jersey Statutes left open to question the circumstances under which an adulterous relationship could be a bar to the dependent spouse's application for alimony. Mani, 183 N.J. at 93.

In the early reported decision of Lum v. Lum, 138 N.J. Eq. 198 (N.J. Ch. 1946), the court held that a husband's duty to support his wife is extinguished when she commits marital misconduct. Likewise, in Mahne v. Mahne , 147 N.J. Super. 326 (App. Div. 1977), the Appellate Division confirmed the previous long-established rule that a wife guilty of adultery should not be entitled to alimony.

However, as society has evolved, New Jersey case law has relaxed its stringent stance, and has permitted alimony awards to dependent spouses who have committed adultery. See Nochenson v. Nochenson , 148 N.J. Super. 448 (App. Div. 1997). This change became quite clear after the New Jersey Appellate Division rulings in the cases of Lynn v. Lynn , 165 N.J. Super. 328 (App. Div. 1979) and Gugliotta v. Gugliotta, 164 N.J. Super 139 (App. Div. 1978).

In Lynn, the Appellate Division reversed the trial court's ruling and found that under the circumstances in that case, the adulterous conduct was not so egregious as to preclude an alimony award. Lynn , 165 N.J. Super. at 328. Likewise, in Gugliotta the Appellate Division affirmed the trial court's decision to award alimony to the defendant-adulteress. Gugliotta, 164 N.J. Super at 140. The reviewing panel clarified that the trial court properly evaluated the illicit affair and considered it in the context of the marriage and held under the circumstances 'the many years of the marriage relationship and the parties' emotional investment in the marriage far outweighed the effect of the adultery insofar as it related to the wife's entitlement to alimony.' Id.

Marital Fault

Presently in the state of New Jersey, except in the rarest of instances, marital fault is not a consideration for a court in determining the right to receive alimony. Mani, 183 N.J. at 93. Such instances may include situations where one spouse attempts to murder the other spouse or where one spouse deliberately infects the other spouse with a disease. Id.

The Mani court stated in no uncertain terms that alimony determinations are a purely economic analysis. Factually, in Mani the trial court ordered the wife to pay the husband $610 per week in alimony. The wife appealed, claiming that she should not be compelled to pay alimony because the husband had engaged in an affair with a woman with whom the parties socialized.

Justice Long ruled that '[b]y delimiting the kinds of fault that may be taken into account in an alimony calculus, we have not only created a template for uniformity and predictability in decision-making, but have relieved matrimonial litigants and their counsel from the need to act upon the nearly universal and practically irresistible urge for retribution that follows on the heels of a broken marriage.' Id. The court held, 'that marital fault is irrelevant to alimony except in two narrow instances: cases in which the fault has affected the parties' economic life and cases in which the fault so violates societal norms that continuing the economic bonds between the parties would confound notions of simple justice. The former may be considered in the calculation of alimony and the latter in connection with the initial determination of whether alimony should be allowed at all.' Id. at 72.

The lone dissenting Justice disagreed, in part, because the alimony statute, N.J.S.A. 2A:34-23(g) provides that, 'In all actions for divorce other than those where judgment is granted solely on the ground of separation the court may consider also the proofs made in establishing such ground in determining an amount of alimony or maintenance that is fit, reasonable and just.'

This ruling was immediately cited in the unpublished Appellate Division decision of Egan v. Egan, 2005 WL 2877794 (N.J. Super. A.D.). In Egan, the husband appealed an alimony award on the grounds that the wife had moved out of the marital home and in with her paramour. The Appellate Division cited the Mani decision in affirming the trial court which did not find that the wife's conduct had a negative economic impact on the parties.

In New Jersey the Mani decision may result in more streamlined and less costly divorce litigations. Lawyers may no longer need to spend many hours drafting detailed complaints, setting forth claims for 'extreme cruelty.' Prospectively, under Mani, a judge will not rely on the allegations, no matter how specific, lengthy, carefully drafted or egregious in determining alimony. Since approximately 97% of all divorce cases in New Jersey are resolved without the necessity of a final decision by a judge, the resolution of divorce cases may also become more efficient due to the parties not having the need to dredge up all of the unpleasant things done to each other during the course of the marriage.

Impact on the Client's Psyche

Although adultery is no longer a consideration as it relates to alimony, a practitioner is still left to explain to the angry client who feels hurt and betrayed by the adulterous spouse why that spouse should not suffer economic consequences as a result of his/her behavior.

According to a poll of some New Jersey psychologists, this dilemma for the practitioner is not uncommon. In fact, clinical psychologists who were polled agree that adultery creates such a profound sense of betrayal and narcissistic injury that it greatly impedes the wounded person's ability to see any good in the other person and therefore may prohibit or hinder the parties from amicably resolving their divorce. In a recent unpublished article prepared by clinical and forensic psychologist, Marcy Pasternak, entitled 'Helping Your Matrimonial Client Negotiate the Divorce Process & Concomitant Emotional Issues,' the client's need for psychological counseling during a divorce proceeding continues to be a prevalent issue that practitioners should recognize. Dr. Pasternak's article offers prudent advice and general information to the practitioner as to how to recognize effectively when a client's emotional state may call for a recommendation to seek counseling.

It is not uncommon to represent a client who finds himself/herself thrust into a divorce that he/she did not initiate or want. As a party to the divorce process, however, he/she must pass through the necessary steps dictated by the legal process. However, when emotionally laden issues are at the forefront, it may be a challenge to follow through on what is required. A client's emotional state may make it difficult for counsel to guide the client through the process so as to best serve his or her needs.

According to some psychologists, when clients have not initiated a divorce or do not want it to occur, they are usually in a very different phase of attachment to the marriage and the marital partner than the soon-to-be ex-spouse. While the other party may be emotionally disengaged or have 'one foot out the door' this individual may feel devastated, shocked, and/or may be in denial. Depression and a sudden compromise in everyday functioning are not uncommon. Until this party is better able to cope with the reality of the divorce, it may be difficult to proceed at the rate that may be necessary or beneficial.

It is very important for the attorney representing such a client to recognize when this may be occurring. A very supportive stance on the part of the attorney is indicated. However, many times the support that any attorney is able to give is not enough. According to psychologists, for some individuals, there may be a need for professional help, and a referral to a therapist may be in order. This is especially the case when there has been a prior psychiatric history.

According to psychologists, this notion of seeking individual therapy may be presented to the client, as a very positive choice that can help support him/her through this very difficult process. It would be helpful for the attorney to normalize the need for such support by noting that it is not uncommon to need this type of assistance. Seeking professional assistance represents a prospective stance, and doing so may empower a client who otherwise feels helpless. Once a client is engaged in therapy, it may be easier for him/her to focus on the business of divorce in a less painful way. Clients might also be better able to make appropriate decisions when they are in better control of their feelings and impulses. In addition, encouraging the client to mobilize a support system can be quite helpful. Engaging relatives and friends, and joining support groups in the community may help the divorcing individual to feel less isolated. It is helpful for attorneys to stress to clients who are having a difficult time coping that it is important for them to take care of themselves. This will help them to negotiate the divorce process in the best way possible, and will also enable them to be more effective parents to their children. Pasternak, Id.

Lynne Strober, a member of this newsletter's Board of Editors, is a partner in the West Orange, NJ, firm of Mandelbaum Salsburg Gold Lazaris & Discenza, PC. She co-chairs the firm's Family Law Department, handling all aspects of divorce litigation, including complex equitable distribution matters, alimony, child support, child custody, parenting time, pre-nuptial agreements and adoptions. She is a Fellow of the American Academy of Matrimonial Lawyers, New Jersey Chapter.