Marital Misconduct and Alimony

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.