- On September 18, 2015
Take this question:
“My wife just learned of my adultery. The fact is, she can prove it. She has threatened that her lawyer will make me pay for it in the divorce and will ask for an increase in alimony to punish me for my conduct. Will this happen?”
Alimony is intended to enable a dependent spouse to live in a manner similar to the marital lifestyle.
Marital fault is not to be considered in an alimony award, except in two narrow circumstances:
1. If the marital misconduct affects the economic status quo, it may be taken into consideration in the calculation of alimony.
This could occur if a spouse dissipated marital assets thus depriving the other party of his or her entitled share of the assets. On the other hand, where marital fault has no residual economic consequences, it may not be considered.
2. In a narrow class of cases involving egregious marital fault, marital misconduct may be considered, not in calculating the amount of alimony, but in the initial determination of whether alimony should be allowed.
The concept of egregious fault is marital conduct that by its very nature is so outrageous that it can be said to violate the social contract, such that society would not abide continuing the economic bonds of the parties.
If your marital misconduct does not fall within either of these very narrow exceptions, it will not be considered by the court. Instead, entitlement to alimony and the duration will be determined based upon the statutory criteria, which includes:
- The actual need and ability of the parties to pay;
- The duration of the marriage/civil union;
- The age, physical and emotional health of the parties;
- The standard of living established and the likelihood that each party can maintain a reasonably comparable standard of living, with neither party having a greater entitlement to that standard than the other;
- The earning capacities, educational levels, vocational skills, and employability of the parties;
- The length of absence from the job market of the party seeking maintenance;
- The parental responsibilities for the children;
- The time/expense necessary to acquire sufficient education/ training to enable the party seeking maintenance to find appropriate employment, the availability of the training/ employment, and the opportunity for future acquisitions of capital assets and income;
- The history of the financial and non-financial contributions to the marriage/civil union by each party including contributions to the care and education of the children and interruption of personal careers or educational opportunities.
- The equitable distribution ordered, and any payouts of equitable distribution, directly or indirectly, out of current income, to the extent this consideration is reasonable, just and fair.
- The income available to each party thorough investment of assets held by that party.
- The tax treatment/consequences to both parties of the alimony award, including whether all or a part of it is non-taxable;
- The nature, amount and length of pendente lite support and, if any;
- Other factors the Court may deem relevant.
If you find yourself in a situation like I’ve described, it is important for you to immediately consult with a good divorce lawyer and listen carefully to his counsel and advice.