My Spouse Had An Affair, So Is He At Fault For Our Divorce?

Bari Zell-Weinberger, a family lawyer in Parsippany, answers:

The New Jersey Complaint for Divorce includes the grounds of adultery, meaning that if the complainant for divorce decides it is appropriate, adultery can be formally cited as the reason for the divorce. Filing on the grounds of adultery does carry with it additional legal burdens in the divorce process. Firstly, the complainant is required to name the person with whom the spouse was having the affair. This person will also be served papers notifying their being named in divorce filings. The “correspondent,” as this person becomes known, then has the opportunity to dispute being named. If claims of adultery are disputed, the complainant may also need to provide evidence of cheating (receipts, bank statements, etc.).

There can be several reasons why someone decides to file for divorce on the grounds of adultery, including the existence of a “cheating clause” within a prenuptial or postnuptial agreement that cancels or changes the agreement if one spouse has an extramarital affair. Filing for divorce on the grounds of adultery is a way to bolster the case for activating this clause.

It is often the case that when one spouse feels unduly wronged when they go to file for divorce, filing under a “no-fault” ground of irreconcilable differences may seem like letting the other spouse off easy, even if it is the true underlying reason for the marital breakdown. Filing for divorce under the grounds of adultery can fill some kind of emotional need on the part of the plaintiff.

On the other hand, filing under the no-fault grounds of irreconcilable difference can be one way to streamline the divorce process (generally, no proof is required to show a marriage is irretrievably broken). Ultimately, which ground you chose is up to you. Speaking with an experienced family law attorney can help inform you of what might be the best fit for your situation.

Bari Zell Weinberger is the owner and managing partner of Weinberger Divorce & Family Law Group in New Jersey. She is Certified by the Supreme Court of New Jersey as a Matrimonial Law Attorney.