Equitable Distribution & Marital Fault in Divorce Cases

Under the laws of most states, including New York and New Jersey, adultery or other marital fault committed by one spouse generally will not affect the division of marital property in favor of the other spouse.

A frequent question I am asked by prospective divorce clients is: "If my husband cheated on me, would I be able to keep the house?" Obviously, many instinctively believe that the spouse having relations outside of the marriage would have to pay in some way for this immoral deed.  Unfortunately, the law does not permit such a "reward" as a method to compensate the other spouse.

Unlike criminal law, generally speaking, divorce law does not aim to "punish".  A cheating spouse will not suffer financial repercussions for his or her unfaithful act.  The court’s only objective in making equitable distribution of all marital property is to achieve fairness, not to punish spouses for non-financial wrongdoing. While adultery is considered to be a violation of many religious tenets, and is even punishable under criminal law in many states, it is not punished in divorce court through financial reward of the aggrieved spouse.

Although adultery can be used as the basis for which a party can ask for a divorce, it will not affect the division of property between spouses. While infidelity is emotionally harmful to any marriage, and it is well known that it can have a negative impact on children, it will not lead to increased distribution in favor of the victim. Thus, a cheating husband will not have to give up “the house" to his spouse.

In the majority of the U.S., marriage is regarded by law as an economic partnership between the spouses. It is assumed that each of them contributes economic value in marriage, either actual, or otherwise. The goods accumulated throughout the marriage are divided equitably (not necessarily equally) in divorce. Emotional and psychological suffering caused by adultery is not considered by the courts in terms of value or equitable distribution.

An exception to this general rule is when adultery causes the other spouse to lose assets. For example, the husband who cheated on his wife gives his mistress significant amounts of marital money. Typical examples also include buying or renting an apartment or expensive gifts or jewelry related to adultery. Such waste may well constitute "squandering marital assets" without the consent or knowledge of the other spouse. To equalize the financial rights of victim, in such cases, the court may distribute a disproportionate share of the assets to the aggrieved spouse. That is not to "punish", but to fairly distribute the parties’ assets.

It should also be noted that if other marital misconduct exists, including assaults or domestic violence against a spouse by the other, such claims may be asserted in the underlying divorce action (as Tevis claims in New Jersey, for example) and may lead to an award of money damages for pain and suffering.  Of course, this is outside and in addition to the equitable distribution of marital property.

- Robert S. Popescu, Esq.
     Popescu Law Group

This and all other articles published by the firm do not constitute legal advice upon which the reader should rely.  The matters addressed are general and informational only.  Legal advice may only be offered to an actual client of the firm, following consultation and analysis of his/her specific circumstances.  The laws vary significantly from jurisdiction to jurisdiction and some or all of the concepts addressed above may have no relevance or applicability in your state.  A lawyer-client relationship may only be formed by formal consultation and engagement of the firm.