My Spouse Cheated. Can I Get More Money in Our Divorce?

Hi, my name is Laura Ruvolo Lipp and I am the co-owner of Family Focused Legal Solutions in New Jersey. Welcome to our new YouTube channel! We just started it and this is one of our first videos. We really hope that the videos we are making can help those of you who are not attorneys, and certainly not family law attorneys, to become more comfortable with some of the really complicated concepts that you may be coming across in the world of family law. Particularly New Jersey family law.

Before I begin, I have to make it clear that this video or any of these videos that our firm makes for you, should not be construed as legal advice for your particular circumstances. These videos are really just made to be sort of an educational tool to help you understand certain concepts and ideas and processes within family law better. If you need legal advice, you should be getting a consultation with a family law attorney. Now, if you're in New Jersey, you can call us at Family Focus Legal Solutions. You can also learn more about our firm at our website www.familyfocusedlegal.com.

This video, we're going to talk about a question that we family law attorneys actually hear pretty often in some of our divorce consultations and the question is, “My spouse cheated on me, can I get more money in the divorce because of it?”. Or maybe it's not even posed as a question, maybe it's “he cheated on me and I'm taking him to the cleaners”. Or it's, “he cheated on me. It's his fault that this marriage ended and therefore I shouldn't have to change my life at all. I shouldn't have to leave the house. I shouldn't have to go back to work. I should not be without my kids every other Christmas”. Whatever it may be, it's actually a common question that we hear a lot, so that's what we're going to address today.

Often when a person is in the middle of the end of their marriage and if an infidelity had anything to do with the end of that marriage, that person has a lot of well-meaning people around them trying to help them through. And that's totally understandable. So it may be a best friend, it may be mother it may be…whatever it is, and often those people, again they're very well-meaning, they will sort of say things to the person who's about to go through the divorce or come into our office for a consultation, you know, such as “you know we'll get him for everything”, “it's his fault this marriage is over”, “no you're not going to have to leave your house”, “you're not going to have to send those kids there overnight”, “you know we're going to take them to the cleaners”, all of that.

So, with that all behind the scenes happening, the person then calls a family law attorney, comes in for a consultation. We as family law attorneys, we're either sitting there with the person who's there for the legal advice or with the person plus some members of their support system mom, best friend, two best friends…you know we've seen it all. And then, we get the question, we get “he cheated on me, what can I get in this divorce because of it?” As family law attorneys, at that point, we sort of have to brace ourselves because this is one of the times that we have to tell somebody, if we're doing any service to them at all, what they have to hear, what they need to hear, which is not necessarily what they want to hear. And the answer, in New Jersey anyway, is that an infidelity during the marriage, but for some exceptions, does not make any difference in how the finances of the divorce are going to play out.

A lot of people are really surprised to hear that. At this point in the consultation, sometimes I'm looking at you know dropped mouths. Sometimes I'm looking at, you know the mom who's wondering if she should go take her daughter for a second opinion to someone who's more aggressive maybe and will give them a better answer. Sometimes I just hear “but he but he but he, or obviously, but she but she but she cheated”, “but it's her fault that the marriage is over”, “but I was doing everything right and why should my life to change and why should the kid's lives have to change” and all that. And I have to really repeat, “listen let's talk about your situation because there's a few exceptions that might apply to your case, but overall in New Jersey, infidelity during the marriage is not going to impact the results you see in your divorce and I use the air quotes because some people are really focused on the results. The results of the case, the result don't always apply themselves to family law cases. I mean it's so fact sensitive and every family is different.

New Jersey is what we call a no-fault state. There are a lot of reasons for that. The most most important, we have a really overwhelmed court system in New Jersey. We cannot possibly put it on our judges to, not only handle everything else that has to be

handled in the divorce, but get to the bottom of whose fault ended the marriage. Can you imagine! We would need a courthouse on every corner if when people in New Jersey go to get a divorce, if they were allowed to fight in court over whose fault it is that the marriage ended. And also think about it, I'm not saying that if one person in a marriage had an affair, that the other spouse must have also been doing something wrong. I'm not saying that at all, however there are a lot of reasons why marriages end. Marriage is a really complicated thing, right, so if this kind of thing was litigated, the judges and the attorneys would constantly be dealing with the issue of, “okay but why did this marriage end”. One person is going to say everything was great until there was an affair. While the other person was going to say well, no things weren't great because our marriage broke down in these 27 other ways before the affair. New Jersey just does not want to get involved with that and like I said it makes sense when you think of the reality of that.

However, another reason why we do not focus on that in New Jersey and we don't attribute some monetary value to affairs like that in New Jersey divorces, is actually to protect you.

Now when you hear this you may say well, that doesn't make any sense. If you wanted to protect me and if you wanted to protect my kids, you would make sure that he had to give me enough money. That I could stay in the house and not have to go back to work and not have to share the holidays and whatever it is, but here's the thing, divorce is already a complicated and stressful and emotionally draining process. Quite frankly for a lot of people, it could become a financially draining process. It's only going to hurt you more if you have judges and lawyers involved in the fight over why did the marriage end.

As family law attorneys what we want to do is we want to help you through the process in a healthy way. We want to sort of send you off into the next chapter of your life financially stable and, you know, newly independent. Really moving on psychologically and emotionally. Spending months or years and spending thousands and thousands of dollars on lawyers fees or experts fees, or whatever it is litigating why the marriage ended in the first place, is not helping you or your kids at all. So, another reason why we don't focus on marital infidelity in New Jersey divorces is to protect you, kind of against yourself, to sort of forbid you from really delving into that and spending litigation fees on that.

Now I did tell you that there are some exceptions to that role, so I will give you an idea of some of the exceptions that New Jersey recognizes.

When it comes to whether an affair had by one spouse can affect the outcome of the divorce, the first exception and the most common exception is if marital funds were used on that affair. If marital funds were spent on the affair, now by marital funds, I could mean marital savings accounts. I could mean money coming out of one or the other spouse's paycheck. As you will learn, if you speak to an attorney about your circumstances, those kinds of things are almost always marital funds so think about this. Think about an example, like spending money on a vacation with that other person when the spouse thought they were on a business trip or something like that. Buying gifts for the other person. I had a case years ago where the husband actually bought a house for the other woman and bought a car for that other woman's daughter. This is called dissipation in a divorce. Dissipation of marital assets where you were wasting marital assets on things that had nothing to do with the marriage.

You were wasting marital assets, spending marital assets, dissipating marital assets, on your affair.

Now, when we get into that kind of thing, there's a huge difference between “he bought someone a house or he went on these vacations and he paid for them” versus “they went to a diner a few times”. When I talk about those things, as we'll talk about a little later in this video, you really sort of want to take some of those ideas with a grain of salt. Really focus on big money spent on marriage from marital assets or from marital funds.

Okay the other time, the other example of when marital infidelity can affect the outcome of a divorce, is if one spouse, because of this affair with this outside person, gave his or her spouse a sexually transmitted disease. Now, I mean obviously that's absolutely devastating. It, thankfully, is not very common in the cases I've had. I mean I've certainly had it happen, but if a spouse brings home a sexually transmitted disease, the spouse who then is now left with this disease for the rest of his or her life, can sue her spouse within the divorce. It's very complicated. A lawyer would explain this to you, for damages that she has suffered now. Because of this affair she is suffering from a sexually transmitted disease. An example that I've successful in different cases, a few different cases that we've had, are the husband who had an affair brought home a sexually transmitted disease to the wife because he was still having sexual relations with his wife, even though he was having an affair, and because of that particular std, the wife then came down with cervical cancer and had to get a hysterectomy. That is an example of a case where sort of a civil suit against that spouse can be incorporated into the divorce, to sue for damages for what you are suffering, to now have to live with this disease for the rest of your life. Again that is such a complicated concept in New Jersey. We call this a tevis claim or a tevis count. If you have such a situation, you really want to make sure that you're speaking to a family law attorney about your specific circumstances so you know how the law may apply to you and and whether an attorney can help you with that.

The final situation that I will discuss today of when I've seen an affair affect the outcome of a divorce, and this is very rare, is in certain custody and parenting time situations if the person having an affair behaved in such a way that actually should be considered when a court or an expert who does the best interest evaluation and divorce case, feels that the best interests of the children were not met the way that spouse was acting. Now before you think, “oh well you know it's not in the best interest of any child to have his parents off having an affair” you know “great that'll help me in my custody case”, no that's not what I mean. More often than not, actually I have to say probably 99 percent of the time, whether a parent had an affair will have nothing to do with how much time the children involved in this family should spend with each parent when the children's best interests are analyzed. I'm talking about extreme circumstances, and let me give you an example from a case I had 10 or 15 years ago, I represented the mom, the wife, she found out that for the past two years, while she was really overwhelmed and distracted taking care of her very ill and eventually dying father, her husband was out having an affair. However, her husband was taking their young children with him sometimes to spend time with that girlfriend and to spend time with that girlfriend's children. So for two years these two children of this family knew that their dad had a girlfriend and they weren't allowed to tell their mom. Now imagine how messed up that is to do to a kid. I mean, I know adult children have a divorce, I can't stand hearing any of that, but these children for, two whole years, were exposed to this other woman and her children, this whole other family almost, and obviously they had to keep it a secret from their mother. That was a rare case where I saw the court and the best interest evaluator absolutely pay attention to that when they were considering which parent has the best interest of the children in mind all the time, which by the way, most parents have the best interest of their children in mind all the time, but this was a situation where he clearly didn't to put his kids through that.

So, if your case meets any of those exceptions the analysis shouldn't stop there when you're speaking to a family law attorney.

The next thing you should talk about, and maybe talking about at the initial consultation is premature if there's not enough information known, but maybe down the line a little bit, the next thing you should talk about is, is it worth it to have whatever legal fight is necessary to prove this affair, to prove the dissipation of assets, particularly to prove the dissipation of assets you know having an std and having your kids exposed to a situation like what I just described is different…you really can't put a price on that, but let's just talk about the dissipated assets okay.

Let's say that you think you know what I know, that when he was going out to eat you know, every other you know Friday night when I was busy doing something else, that he was actually going out to eat with her. Now I know the truth, well let's think about that okay. Even if you're right, if all we can come up with and all we even suspect and all we can see any proof of in just, at least an initial analysis of the financials, is things

like going out to eat a few times, even going out to eat you know 8 or 10 times or 12 times or 15 times, is making a legal argument to try to get a credit back for that money, is it worth the money you will spend, and here's what I mean, if you are making an legal argument that there has been dissipation of marital assets or dissipation of marital funds in your divorce case, what you are actually requesting is that you should be credited, you should receive a credit for half of the money spent, okay you're not going to be able to make a legal argument that you should receive, you know, alimony for life if you're not entitled to anything like that. Or that you should receive all the equity in the house or things like that or twice as much alimony, whatever it is, in a dissipation argument in a divorce case.

What you're really arguing for is this is how much I think my spouse spent on this affair, half of that money was mine and therefore I want to receive a credit for that when we're figuring out how all these other numbers in this divorce play out. So for example, if you're selling your house and you're splitting the proceeds, if your husband spent ten thousand dollars, your wife spent ten thousand dollars, on this affair, you're arguing that from his or her share of the proceeds from the sale of your house you should be getting that extra five thousand dollars credited back to you.

There’s a limit to what you're going to get back. So even if you really think that your spouse may have spent something like ten thousand dollars on this affair and that's a lot of money of course, it's a lot of money, we understand that, however do you know what else is a lot of money, unfortunately legal fees, expert fees, mediator fees and

all of those things are necessary to move a dissipation case along. You know these are not inexpensive cases because they're so time consuming to get to the bottom of and the discovery is really comprehensive.

So, when you are talking to your lawyer about whether you should be making a dissipation claim in your divorce, you don't just want to talk about has there been dissipation in your case, you also want to take it a step further and say “is it worth it when I do a cost-benefit analysis”, if based on what we can find so far, even if he spent ten thousand dollars, and I have a chance of getting five thousand dollars back, if I could prove all ten thousand dollars were spent on an affair specifically, then is it worth it if I'm paying a lawyer three or four hundred dollars an hour to work on that case to get that five thousand dollars back. Before you know it, unfortunately you will have spent five thousand dollars to get five thousand dollars and if you're not careful you will have spent ten thousand or fifteen thousand or twenty thousand or twenty five thousand in an argument to try to get five thousand dollars back, and that's because these dissipation cases are so time consuming and you're paying an attorney by the hour. Some dissipation cases even require forensic accountant. Now usually when we get to that point, we're talking about big money dissipation, but again, even a really high dollar dissipation case often means a high dollar forensic accountant is going to be necessary, so I am not discouraging you at all from proceeding with the dissipation case if that applies to you, all I'm saying is that when you're speaking to an attorney, don't only talk about whether the legal concept of dissipation of marital funds or marital assets applies to you and whether you can technically seek a credit for it in your divorce, also talk about what might be involved, what you might be spending, what you might be putting yourself through psychologically and emotionally to get whatever that credit is that you're seeking.

Now I don't want you to think before we end this video that a family law attorney doesn't care about what you are going through if your marriage ended because of infidelity. We understand how shocking and raw and devastating that is for you, all I’m saying is that a family law attorney would be doing you a disservice if they weren't also

advising you, and sometimes repeatedly reminding you, that the affair that your spouse had, this horrible betrayal that ended your marriage, is not going to make any difference in how the finances and or the custody issues of your divorce are resolved.

I hope you found this helpful. If you would like to learn more about New Jersey family law or about our firm, you can go to our website. It's at www.familyfocusedlegal.com. If you live in New Jersey and you need a consultation with a New Jersey family law attorney for any family law issue really, it doesn't have to be about divorce and certainly not about this dissipation and extramarital affairs, you can give us a call at 973-993-9960.

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Alright, take care!