In New Jersey, there are nine grounds for divorce. The most common is “irreconcilable differences.” To file on grounds of irreconcilable differences, you must allege that you and your spouse had irreconcilable differences for at least six months, that the marriage should be dissolved because of those differences, and that there is no reasonable prospect you and your spouse will reconcile. Complaints filed on irreconcilable differences grounds are simple and to the point—there doesn’t have to be any rehashing as to what exactly your differences were; you merely have to state that you had them. So, if your husband refused to talk to you when football was on or your wife nagged you about not talking to her when football was on, the court doesn’t need to know.
In addition to irreconcilable differences, one of the grounds for divorce in New Jersey is adultery. To file an adultery claim, you must identify the person with whom you allege your spouse is or was having an affair, and you must also serve that person with the divorce complaint.
Many who are choosing to file for divorce on grounds of adultery are angry and want the cheating spouse (and not to mention the court) to know the reason the marriage is ending. But, is there a benefit to including adultery in a divorce complaint? Generally speaking, no. Conversely, is there any detriment to including it? Again, generally speaking, no. In this day and age, the Court does not care if your spouse cheated. Your spouse’s alleged adultery generally has no bearing on whether you’ll receive or have to pay alimony; it generally has no bearing on how your assets will be divided. Furthermore, the mere allegation in a divorce complaint that a spouse cheated generally does not affect the cheating spouse’s rights with regard to the children.
There are strategic reasons not to include adultery in a divorce complaint. It may inflame the soon-to-be ex-spouse and put him or her on the defensive at the outset of the litigation. While divorce can bring out the worst in people regardless of the grounds for divorce, anyone contemplating filing for divorce on grounds of adultery should consider the emotional consequences of doing so. By the same token, there is no legal detriment to including adultery in the divorce complaint.
Of course, the law is never as simple as yes or no. While generally adultery does not have consequences in divorce litigation, in certain instances, adultery does affect the equitable distribution in a divorce. For example, if your spouse racked up credit card debt on the joint credit card in order to continue an affair (i.e. dinners, vacation, presents), even though the credit card is in joint names and the debt was incurred during the marriage, the “innocent” spouse likely would not be responsible for paying it. As another example, if your spouse borrowed against his 401(k) to buy his significant other a diamond necklace, when the 401(k) is eventually divided, the cheating spouse would likely be responsible for the totality of that loan without affecting the “innocent” spouse’s share.