Monday, May 02, 2005

He cheats on you with your best friend and then you have to pay him alimony? Say it ain’t so!

We all know the story. Either it has happened to us . . . or to a friend . . . and of course it is a favorite plot of movies and books. The details may differ but the main story remains the same: a husband (or wife) cheats and, to up the humiliation quotient, the spouse is cheating with a friend! Now, usually, absent turning a blind eye (a la Carmella Soprano) or pretending to forgive and forget (a la Hillary Clinton) divorce papers shortly follow the discovery of betrayal. (Let’s face it – who wasn’t just a bit surprised that CNN didn’t catch footage of Hill throwing Bill’s clothes out onto the White House lawn? But I digress.)

Now what if, upon receipt of the divorce papers, the cheating spouse turns around and asks the innocent victim spouse (the non-cheater) to pay alimony, that is, write a check every month to the person who lied to your face. The person who was cavorting with the friend or neighbor. The person who was sneaking around. The person who will most likely enjoy the alimony check with their new boyfriend or girlfriend. They are basically asking for severance pay!
Believe it or not, the Supreme Court of New Jersey recently considered this very question. (I know, I know – you thought law was boring and stuffy. Well, every once in a while, a juicy issue winds its way to the guys and gals in the robes on the bench.) Unfortunately for the innocent victim spouses, the court’s answer is bound to disappoint. The case is called Mani v. Mani. (You can find the full text of New Jersey Opinions on the following website: http://lawlibrary.rutgers.edu/search.shtml).

The relevant facts included in the court’s opinion are as follows: Brenda and James met in 1970 and worked together in James’ boardwalk business. Brenda also taught preschool. The parties married and purchased a house with profits from the boardwalk business. Brenda stopped teaching and they began working 100 hour weeks during the summer season – and taking off most of the fall and winter. Brenda’s dad was apparently wealthy and began giving her (and her siblings) various gifts of money, stock and investments. Now Brenda’s dad was not only generous, he was also prudent (and perhaps had e.s.p.) I say this because each gift to Brenda was only handed over once James had signed a waiver that he gave up any rights as a spouse to this small fortune that was trickling in. You see, generally speaking, anything of value that comes into a marriage may, depending on certain factors and conditions, be considered marital property. Now perhaps Brenda’s dad could see the writing on the wall that this couple was not destined for the happily every after of fairy tales. Or perhaps Brenda’s dad just did not like James. Whatever the reason, he artfully excluded James from these various gifts, which by 1991 had appreciated to $1.7 million. By 1993, Brenda and James retired from the boardwalk business and began to live an extravagant lifestyle, almost exclusively from Brenda’s income from investments. Now James attempted a job here and there, but never significantly contributed to the household after the business was sold.

By approximately the year 2000, it came to Brenda’s attention that her husband, who was living the high life off of her money, was cavorting with one of the couple’s friends. In a very un-Hillary like manner, Brenda washed that lying, cheating sponge right out of her hair and promptly filed a complaint in divorce. Now James turned around and asked Brenda to support him in the lifestyle he had become accustomed, presumably as he cavorted with his new girlfriend.

Legal bickering and squabbling ensued and the trial court eventually granted James $610 per week in alimony. James objected to this on the basis that he simply could not afford to maintain his lifestyle on such a paltry sum, even if he went out and tried to find a job. (James took the position that his earning potential was nothing to write home about - even if he really tried - he felt he could only earn $25,000 per year. It is quite amazing to watch, actually – what people will admit to just to get more support from someone.)

James appealed - stating that the $610 per week of Brenda’s money was simply not enough to support his lifestyle (a lifestyle, by the way, that cost between approximately $7,000 and $13,000 per month to keep up.) Brenda, of course, cross-appealed stating that he should not get any money, mostly due to the simple fact that he could work and support himself- he just chose not to (in other words – it appears that she thought he was lazy.)

The case finally went to the Supreme Court of New Jersey and the court considered the issue of paying alimony to an adulterous spouse. The New Jersey State Bar Association even chimed in with its own opinion. The court decided that it is improper to consider adultery when calculating an alimony award — in other words ---- even if your spouse lies, cheats and is caught canoodling, you will still have to pay alimony if the economic situation warrants it. The court attempted to separate fault from the economics of a divorce – even if one party commits so called bad behavior, we won’t consider that when awarding alimony. The court did carve out two narrow exceptions: (1) if the fault negatively affects the economic status of the parties or (2) if the fault so violates social norms that continuing the economic bonds between the parties confounds simple justice.

One justice did dissent from the court’s opinion, commenting that if cheating on your spouse with one of your spouse’s friends does not "confound simple justice" he did not know what would. So, the case of Brenda and James will go back to the lower court to reconsider how much alimony Brenda will have to pay to James, and the lower court will not be able to take into account that the whole reason the marriage broke up was because James committed adultery.

So, the moral to the story (if there can be a moral in a story about lying and cheating) is that, in New Jersey, marriage is more than romance and love – it is a serious business relationship recognized by the courts – and if it doesn’t work out – even if its not your fault that it’s over, you could be paying severance pay to your spouse for him or her to use on their new squeeze. So choose wisely when you choose your spouse.....