Divorce Magazine Article
by Elisabeth L. Rowley, Esq.
March 24, 2005

Question: “I had an affair.   My wife says I am at fault for our divorce, and she plans to take all the property in the divorce.  Will she get everything.”

No, it is highly unlikely that she would “get everything” and it certainly would not be the result of you having an affair.  It is true that in New Jersey there are both fault and no-fault grounds for divorce; however, from a practical standpoint, fault will not play a major role in your divorce case.  Furthermore, the presence or absence of marital fault is irrelevant to how marital property (i.e., marital assets) will be divided, except in cases of extreme levels of criminal or financial fault.  Therefore, your property rights will not be effected by the fact that you cheated on your spouse and vice versa.

Marital property is divided in New Jersey by what is referred to as equitable distribution.   This does not necessarily mean that assets are automatically divided on a 50/50 basis.  Rather, “equity” is a term for fairness and the Court will make a fair allocation and distribution of all martial property.  For purposes of equitable distribution, the Court must determine 1) what assets are subject to equitable distribution; 2) what the assets are worth; and 3) what percentage of each asset each party should receive.  The Court must also consider certain factors enumerated in the New Jersey statute on the equitable distribution of property, which include duration of the marriage, the income or property brought to the marriage by each party, the economic circumstances of each party at the time the division of the property becomes effective and the contribution of each party to the acquisition, dissipation, preservation, depreciation or appreciation in the amount or value of the marital property. 

The bottom line is that marital fault, while an emotional issue for one or both of the parties in a divorce, will have little to no effect on the final resolution of your case.
 

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