Does Fault Matter in Divorce Cases?

Feb 9, 2018 | Written by: William J. Rudnik, Esq. | Share

One of the questions most often asked in divorce matters is whether a spouse’s conduct or “fault” in causing the divorce proceeding is relevant.  The short answer is that usually “fault” has no impact on the divorce case.  However, there are some exceptions.

In New Jersey, there are “fault” grounds to file for a divorce as well as two “no fault” grounds.  The “no fault” grounds include separation for 18 months, where parties are living in separate residences (not separate bedrooms in the same house) for at least 18 months (continuous) prior to filing for divorce.  The other “no fault” ground for divorce is what is known as irreconcilable differences.  If you have irreconcilable differences with your spouse for at least 6 months and the marriage is beyond repair or reconciliation, you can file based on irreconcilable differences. 

The fault grounds for divorce include adultery, abandonment, addiction, deviant sexual conduct, extreme cruelty, imprisonment, and institutionalization.  None of these fault grounds for divorce by themselves provide a basis to impact the divorce case.  For example, a spouse who commits adultery does not give rise to the other spouse having any financial advantage in the divorce case.  If a spouse is addicted to drugs or alcohol, imprisoned, or institutionalized for the requisite periods under the statute, leading to a basis for divorce, in and of themselves these grounds do not provide a basis for the other spouse to gain any financial advantage.  Certain fault grounds for divorce may be a basis for a parent to obtain primary custody or in some circumstances, even sole legal custody.  Fault grounds that relate to a parent’s ability to care for a child could impact the custody in the case.  These would include addiction, imprisonment, institutionalization, and potentially other fault grounds, depending on the type of conduct.  However, a party does not need to file under fault grounds to seek legal or physical custody of a child in the divorce case.

There are two significant circumstances where fault does provide a basis to impact the financial issues in a divorce case.  Although it is not very common, the first type of fault that would impact the financial issues is a physical assault of a spouse by the other spouse.  A spouse who is assaulted, and as a result suffers a physical injury, has a basis to file a tort action against the spouse known as a Tevis claim.  The claim is essentially the same as it would be against any third party who causes an injury, and the injured party has the right to a jury trial against the spouse for the injury.  The Tevis claim is filed as a separate count in the divorce complaint.

The second type of fault that impacts the financial issues in a divorce case is financial fault.  Although not frequent, this is more common than a Tevis claim.  Financial fault could range from a party spending marital funds on a boyfriend or girlfriend, to sending money to family members in secret during the marriage (often family members outside of the United States).  Financial fault may also involve one spouse embezzling from a business that is a marital asset, owned by one or both of the spouses.  Financial fault in divorce cases can impact alimony (support) and equitable distribution (division of assets).  For example, in a case where a spouse embezzles money from a business that is a marital asset, the spouse may have to pay more alimony than he or she would otherwise.  Or, if the spouse would normally be the recipient of alimony, he or she may get less or no alimony as a result of the embezzlement.  The spouse may also receive less by way of equitable distribution if he or she has embezzled from a business that is a marital asset.

Thus, while general fault in a marriage typically is of no consequence, certain forms of fault that are less common can impact the financial aspect of a divorce case.  Other types of fault, essentially any fault that relates to a parent’s ability to care for the children, can impact custody and parenting time.

If you have any questions as to whether fault applies to your case, please contact me via email or call 908-735-5161.  I am a certified matrimonial law attorney and handle collaborative divorce, mediation, and litigation.