Can An Adulterer Receive Alimony?
By JOANNA GROSSMAN
Tuesday, May. 03, 2005
Could marital misbehavior play a role in the alimony determination? In a 6-1 decision handed down last month, the New Jersey Supreme Court said yes - but only in very narrow, extreme circumstances. Cases of adultery like Brenda and James's probably will rarely, if ever, meet the standard.
The Manis' Marriage and Divorce
To assess whether the court was correct, it's worth looking into the particular facts of the Manis' marriage.
Brenda and James met in 1970, when she, a college student, went to work for his business on a boardwalk on the Jersey Shore. After they married in 1973, they began working long hours together at the business in the summer, but spent much of the off-season on vacation.
Although the business turned a profit, the income was insufficient to finance what the trial judge called the couple's "extravagant" lifestyle. Instead, the judge found, that lifestyle was almost exclusively financed by gifts of stocks and bonds from Brenda's father. But the gifts were only for her - indeed, he required each of his children's spouses to sign a written waiver of any and all rights to the gift property as a condition of transferring it.
While still in their 40s, the couple retired. Seven years later, Brenda learned that James was having an affair with a mutual friend. She filed for divorce - alleging both adultery and extreme cruelty. Since the couple had had no children, property division and alimony were the key issues for the court.
By the time of divorce, Brenda's investment assets were worth $2.4 million dollars, while James's total assets - including his share of marital assets -- were worth, at most, a few hundred thousand dollars.
The trial court fixed alimony at $610 per week based on James' economic dependency, concluding that he had the ability to earn a minimum of $25,000 per year. Both parties appealed.
On appeal, James sought more alimony, claiming his award would leave him with a budget shortfall of $4000 per month. Brenda, on the other hand, argued that he should receive none. She argued that his dependency was occasioned by his own "indolence" and since he had not made a non-economic contribution to the marriage (for instance, taking care of children), he did not deserve a compensatory alimony award.
The appeals court refused James's request to raise the amount of alimony: "[H]is marital indiscretions," it held, "warrant consideration in the amount of that award." It thus relied on his misconduct to uphold the alimony award, although the trial court had actually not taken it into account. But it also rejected Brenda's request to zero out the award.
The parties then appealed again, to the New Jersey Supreme Court. That court thus had to decide if an adulterer could - or should - receive alimony.
Alimony and Fault: The Historical Origins
Alimony - the periodic payments one spouse might be ordered to pay another following dissolution of their marriage - is an old concept. Historically, women who separated from their husbands for cause (or were abandoned) could be awarded alimony based on the assumption, usually true, that they lacked the ability to provide for themselves. (Married women - even separated ones - suffered from legal disabilities that made it difficult or impossible for them to earn money or own property.)
The concept of alimony reflected the reality that most women were economically dependent on their husbands. It also served the conception of marriage as a lifetime commitment. A husband's duty to support his wife continued for life, even if the couple ceased cohabitating.
But only "innocent" wives had a right of support. So if a wife left her husband without cause, she had no right to collect alimony. And later, when alimony was used following divorce as well as separation, the same principle applied. Divorces, historically, had to be premised on the innocence of one party and the fault of the other. To collect alimony, then, the wife had to be the plaintiff.
Alimony and No-Fault: The Modern Era
The 1970s and 80s saw the end to fault-based divorce in most jurisdictions. Today, every state makes available at least one no-fault ground for divorce - a substantive standard like "irreconcilable differences" or a period of separation.
The revolution that produced this new approach to divorce came with significant practical changes to divorce litigation. Parties could now obtain "uncontested" divorces, which were notably quicker, cheaper, and less messy. The level of acrimony in many cases dropped because spouses were not asked to prove either other's failings.
Along with these practical changes came new theoretical conceptions about marriage and life after its dissolution. The idea that couples should be able to escape a failed marriage, go their separate ways, and, perhaps, find happiness in a better marriage emerged. For this to happen, though, couples had to be given a clean break from the failed marriage.
The idea of a clean break was, of course, inconsistent with the historical conception of alimony - which envisioned marital commitments extending for the life of the parties, whether they remained married or not. At the same time, the legal rules that justified a presumption of wives' dependency had also disappeared.
As a result, courts increasing displayed their dislike for the concept of alimony. Some felt it was wrong to require divorced spouses to have continued, regular contact; others felt it was based on an outdated conception of the status of husbands and wives.
Courts and legislators also developed a particularized dislike for fault considerations in alimony awards, given the development and widespread adoption of no-fault divorce laws.
The Uniform Marriage and Divorce Act, first promulgated in 1970, reflects both of these trends. It says alimony should be awarded only if one spouse "lacks sufficient property to provide for his reasonable needs" and, then, it should be awarded "without regard to marital misconduct."
According to the American Law Institute's Principles of the Law of Family Dissolution ("ALI Principles"), published in 2002, twenty states follow this model by refusing to consider marital misconduct when making alimony determinations, while another eight consider it only in rare cases.
Twenty-two states, however, continue to permit full consideration of fault when deciding whether to award alimony and in what amount. North Carolina, for example, bars alimony to a dependent spouse who has committed adultery, and requires that alimony be awarded if a provider spouse has done so. And in every case in which one spouse is eligible for alimony, marital misconduct of all kinds can affect the amount of the award.
Where Does New Jersey Fall in the Current Landscape?
The ALI Principles classify New Jersey among the eight "almost pure no-fault alimony" states. The decision in Mani v. Mani cemented this classification by making fault irrelevant to alimony determinations almost all the time - though not in every case.
Like many other states' statutes, the New Jersey code authorizes courts to make determinations after considering an enumerated list of factors. The list includes typical factors like need, ability to pay, duration of the marriage, age and health of the parties, earning capacity, standard of living during marriage, non-financial contributions to the marriage, and so on. It does not expressly mention marital fault, but the last entry on the list empowers courts to "consider any other factors which the court may deem relevant" when awarding alimony.
There is also a statute providing that the "proofs made" in a fault-based divorce - which New Jersey retains, as an alternative to divorce based on a period of separation - may be considered in determining the amount of alimony.
Regardless of the statutory authorization, New Jersey courts, in practice, rarely focus on fault in setting alimony. Indeed, the New Jersey State Bar Association filed a brief urging the court to exclude considerations of non-economic fault and to retain a focus on the parties' financial circumstances. To reintroduce active litigation over fault, the lawyer who argued the case warned, could bring the matrimonial system to a "screeching halt."
The Mani opinion begins with a review of the history of alimony and notes, correctly, that although alimony is legally authorized in every jurisdiction, there is "no consensus regarding its purpose."
Courts, legislatures, and scholars have, variously, contended that alimony can be justified as: damages for breach of the marriage contract; a share of the benefits produced by a marital partnership; compensation for past contributions to a marriage; deterrence or punishment for misconduct; or a means to provide support for a party who cannot provide for him or herself.
The problem is that these justifications often are at odds in a particular case, and the role of marital fault is relevant to some but not all of them. The majority in Mani noted, however, that New Jersey courts have long treated alimony as neither reward nor punishment. It has, instead, been conceptualized as an "economic right that arises out of the marital relationship" designed to provide a "dependent spouse with a level of support and standard of living generally commensurate with the quality of economic life that existed during the marriage."
This conception would seem to suggest that fault is never relevant to alimony determinations. But the legislative history of the "Divorce Reform Bill," the 1971 New Jersey law implementing no-fault divorce, suggests that its drafters believed fault would still be relevant to alimony determinations. A commission report noted the obvious tension in that position - eliminating fault from one issue, but not another - but thought the tension was accommodated by focusing primarily on economic factors but leaving room for consideration of fault where appropriate.
Judicial precedents in New Jersey go both ways: Some permit fault to affect alimony determinations. But others suggest such consideration to be improper. And still others suggest fault can be considered only if the behavior at issue is particularly egregious. The Mani court read these precedents, taken together, to support a continued, but very limited role for marital fault in alimony determinations.
It thus held marital misconduct to be irrelevant to alimony awards except in two situations. First, fault may be considered when the misconduct has directly affected the economic status of the parties. So, for example, if a husband's abuse of his wife has left her unable to work, the court may award her greater alimony because of the misconduct. Or if a wife dissipated the couple's assets wantonly, she may be ordered to pay more alimony to her husband who does not have property to fall back on.
Second, the court held that alimony may be barred when the potential recipient has engaged in misconduct that "is so outrageous that it can be said to violate the social contract, such that society would not abide continuing the economic bonds between the parties." By way of example, the court suggests a spouse who tries to murder the other, or a spouse who deliberately infects the other with venereal disease.
Here, since the trial court had not relied on marital fault in assessing alimony, the Supreme Court only remanded the case to the intermediate appellate court - to see if it would still uphold the trial court's award without its own consideration of fault. Since the trial court did not take into account in the first place, the original award is likely to be upheld on remand.
New Jersey Has Stopped Short of the ALI Rule, But Comes Close to It
With this decision, New Jersey aligns itself closely with New York. In recent years, New York has adhered to a "shocks the conscience" approach to the consideration of marital fault when parsing out the economic consequences of divorce. Only fault that "shocks the conscience" - such as brutal abuse -- can count. (I have written about the relevant New York precedents in a prior column).
New Jersey is following a modern approach, but has stopped short of the position endorsed by the ALI Principles. The Principles conclude that economic fault should be considered (as did the New Jersey court), but that non-economic fault should be excluded from consideration, regardless of how egregious it was.
Why did the ALI drafters reach this conclusion? It was not because they lacked sympathy for a victim spouse. Instead, it was because they thought that punishment for misconduct is best undertaken by the criminal law, and compensation for injury is best undertaken by tort law. So in a case of egregious fault - say, a brutal physical beating - the idea is that the victim ex-spouse can both go to the police, and sue his or her ex in tort.
These overlapping legal regimes of criminal and tort law may well be better suited to considerations of misconduct than divorce law is. Yet, it is the divorce court that has the parties before it, at a given time, and must make a decision. Moreover, it seems a bit strange, when abuse plainly did occur, for one spouse to pay alimony to the defendant against whom she will testify in both civil and criminal court - and keep on paying, in theory, even if her ex is jailed for the abuse.
Accordingly, while considerations of fault have historically been unsatisfying - messy, litigious, and only superficially reflective of the real cause of marital breakdown - New Jersey may be right to preserve at least a narrow possibility of taking fault into account.
It would, after all, be unseemly to order a husband to pay alimony to a wife who had tried to murder him - even though she might really need the money. The court, it seems, ought to have the discretion to refuse to do so in the most egregious cases. The Mani decision has preserved that discretion.