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How Can the Ashley Madison Leak Impact Your Divorce?

So you've discovered your spouse had an account with the infidelity-facilitating website, Ashley Madison, or perhaps you've discovered your spouse had an affair by other means. Now you want a divorce, and you want to know how the Ashley Madison leak and adultery in general can impact the outcome. The answer in New Jersey is probably not at all.

New Jersey allows for parties to file for divorce based on "fault" and "no-fault" grounds. Fault-based grounds include adultery, habitual drunkenness, desertion, deviant sexual conduct, and extreme cruelty. No-fault based grounds include separation and irreconcilable differences.

Regardless of upon what grounds the complaint for divorce is based, however, marital fault (including adultery) does not have an impact on child support, custody, or the division of marital assets (called "equitable distribution"):

• "Marital fault is not a relevant consideration in determining the extent of child support obligations under N.J.S.A. 2A:34-23." Kinsella v. Kinsella, 150 N.J. 276, 285 (1997) (emphasis added). "The obligation of support springs from the parental relationship and is affected only by the needs of the children and the means of the parent to fulfill the obligation. Fault between the parents is irrelevant to the existence or the extent of the obligation." Ionno v. Ionno, 148 N.J. Super. 259, 261-261 (App. Div. 1977).

• "[A] determination of marital fault does not disqualify a parent from obtaining custody, except as far as such fault is independently determined to be proof of parental unfitness." Kinsella, supra, 150 N.J. at 285 (emphasis added). For example, even if one were to plead extreme cruelty, same would not affect custody unless the cited "extreme cruelty" is separately determined to be evidence of a party's unfitness as a parent. Id.

• "[M]arital fault on the part of one spouse is not one of the criteria or circumstances that may properly be taken into account in determining in a given case how the distribution may most fairly be made." Kothari v. Kothari, 255 N.J. Super. 500, 511 (1992) (emphasis added).

In other words, the court is not going to award you more child support, parenting time, or marital assets simply because of your spouse's infidelity.

There exists, however, a possibility that marital fault may impact the court's determination of equitable distribution or alimony:

(1) Equitable Distribution: The court may consider one spouse's dissipation of marital assets in determining equitable distribution. Id. at 506. Dissipation is found "where a spouse uses marital property for his or her own benefit and for a purpose unrelated to the marriage at a time when the marriage relationship was in serious jeopardy." Id. If the court finds a spouse dissipated marital funds, same may be properly considered in determining how distribution may be made most fairly. Id.

(2) Alimony: New Jersey courts currently acknowledge only two narrow exceptions in which marital fault might have an impact on alimony; specifically, instances where the marital fault:

• (1) Has affected the parties' economic life and/or

• (2) So violates societal norms that continuing the economic bonds between the parties would confound notions of simple justice (referred to as "egregious conduct").

See Mani v. Mani, 183 N.J. 70, 78-93 (2005).

The first exception may be considered in determining the amount of alimony, if any. "By way of example, if a spouse gambles away all savings and retirement funds, an appropriate amount representing the lost savings and retirement may be included in the alimony award to the other spouse." Mani, supra, 183 N.J. at 72. With regard to the second exception, a spouse's actions that rise to the level of egregious conduct may be considered by the court in determining whether alimony should even be awarded to that spouse at all. For instance, the embezzlement of marital funds by the wife in Clark v. Clark, 429 N.J. Super. 61, 64 (App. Div. 2012), was held to constitute such "egregious conduct".

So, if in addition to using the Ashley Madison site and carrying on an affair your spouse spent exorbitant amounts of money on his or her paramour, it could be argued that this "altered the financial status of the parties" and is therefore relevant in determining the amount of alimony awarded. Mani, supra, 183 N.J. at 72. More likely is that the court may reimburse the marital pot as part of the equitable distribution. Kothari, supra, 255 N.J. Super. at 511 In most cases, however, there are minimal, if any, practical consequences of succeeding in a divorce action on fault-based grounds, including adultery.

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