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What Role, If Any, Does Fault Play in Determining Alimony?

Aug 5, 2015 | Written by: William W. Goodwin, Jr., Esq. |

In a recent blog post, I commented that New Jersey is a “no-fault” jurisdiction. In that post, I mentioned that fault seldom has an impact on the outcome of the case. Thus, the fact that a party deserts his or her spouse, commits adultery on numerous occasions, or engages in acts of extreme cruelty very rarely affects the resolution of the underlying issues.

The payment of alimony is the one area where fault is potentially relevant. This stems from the terms of the alimony statute itself. In that statute, NJSA 2A:34-23(b), the legislature set forth a non-exhaustive list of factors a Court shall consider (such as the duration of the marriage, the standard of living established during the marriage, the age and health of the parties, their educational backgrounds, the deferment of career opportunities during the marriage, the needs of the children, etc.). It then provided: “[i]n 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…that is fit, reasonable and just (emphasis added)”.

As a consequence, New Jersey case law has grappled with the circumstances under which Judges may consider fault in assessing whether to award alimony and, if so, how much alimony to award and for how long. A fair reading of the leading cases in New Jersey leads to the following conclusions:

  1. Where marital fault has negatively affected the economic status of the parties, it may be considered in the calculation of alimony. An example would be where one spouse gambles away all the savings and retirement assets of both parties, thereby leaving the other spouse economically destitute and in need of support from the offending spouse.
  1. Where marital fault has not negatively affected the economic status of the parties, marital fault will not be considered at all unless it rises to the level of “egregious” fault. While the courts have not provided us with a complete list of acts constituting “egregious” fault, we have been cautioned that it is an “extremely narrow band” of instances and involves conduct “so outrageous that it can be said to violate the social contract such that society would not abide continuing the economic bonds between the parties.” Some examples that have been mentioned are attempting to murder the spouse who would otherwise be paying alimony to the perpetrator, or attempting to infect the other spouse with a loathsome disease. However, there are other cases where less shocking acts have been considered important enough to merit consideration.

Accordingly, while “marital” fault very rarely plays any role in deciding the outcome of a typical divorce case, it is something that should be discussed with your lawyer in your first meeting with him or her.


William W. Goodwin, Jr., Esq. is certified by the NJ Supreme Court as a Matrimonial Attorney. He is also qualified as a Mediator in the field of Family Law under the New Jersey Court rules, and he is trained in Collaborative Divorce. Contact Mr. Goodwin at 908-735-5161 or via email.