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June 2021


“Jason describes himself as being honest with clients, empathizing with them based upon his own experiences witnessing the effects of divorce on family and friends. He also knows how to treat someone going through the turmoil of challenging family matters. After working for large law firms where he honed his research, advocacy, and aggressive litigation skills, Jason saw where he could improve his clients’ outcomes. He opened his firm, Eveland & Foster Law,  to give clients full attention, aboveboard legal counsel, and fair rates. Jason, along with his law partner, Elizabeth Foster-Fernandez, Esq., works directly with clients from all walks of life to help them determine what’s worth fighting for and how to creatively solve problems. Jason’s degree in psychology and Master of Arts in Elementary Education deepens his insight into how both adults and children handle sensitive family issues. Clients describe Jason as always available to speak, extremely knowledgeable, and exceptionally detail-oriented with a reputation for keeping a close watch on cases so nothing falls through the cracks. If you feel your situation deserves better, contact Eveland & Foster Family Law.” ⚖️

Does Proof of Adultery Make a Spouse Ineligible for Alimony in New Jersey?

A couple is married for 12 years with two kids. One spouse works full-time and is away on business half of the year, the other spouse is a stay-at-home parent. The supported spouse gets involved in an extramarital affair and conceals it for a few months, until the supporting spouse catches them in the act. Understandably frustrated and betrayed, the supporting spouse contacts an attorney to file a divorce. She is surprised to learn that even though her spouse cheated, he may still be eligible for alimony because of his non-monetary contributions to the marriage, and inability to support himself, at least temporarily. Are spouses eligible for alimony if they cheated? Does adultery affect the outcome of a divorce?

 Eligibility for Spousal Support

Courts determine eligibility for spousal support in New Jersey using several factors. This includes both spouses’ contributions to the marriage, a spouse’s education level, income, the need and ability of either party to pay alimony, the length of the marriage, as well as the age, and physical health of both parties. If one spouse is disabled, has not worked in over 15 years, has no formal education and no professional networking contacts, they may be eligible for indefinite alimony. If another spouse has a doctorate degree but has not practiced in over a year, the court might award them temporary alimony until they find full-time employment. Our attorneys at Eveland & Foster are available to answer your questions.

While courts used to weigh adultery as a determining factor when determining a spouse’s eligibility for spousal support, this is no longer standard practice. This is especially true if a plaintiff files for no-fault divorce. Unless the plaintiff files for divorce under the fault grounds of adultery, and proves the grounds in court, the judge cannot unilaterally weigh their testimony about an affair when deciding if the cheating spouse should receive alimony, and in what amount. This might seem fundamentally unfair. After all, your spouse cheated, why should they be rewarded with spousal support indefinitely? If you feel strongly about this, have hard evidence to prove your spouse committed adultery, and want to proceed on those grounds, that is your option. But understand that even then, your ex may still be eligible for temporary spousal support in the interim.

Adultery and Legal Recourse

You can file for divorce under the grounds of adultery, but there is a catch. You have to prove disposition and opportunity. In other words, you must prove that your spouse had both the inclination or drive to cheat, and the opportunity to act on his desires. This might be proven through evidence like phone records, bank statements showing your spouse spent large amounts on a new lover, evidence of frequent hotel stays, or surveillance of your spouse caught in the act or being intimate with their new beau. Because adultery is difficult to prove, and doing so may have no impact on the adulterous spouse’s eligibility for alimony, it often makes sense to simply file a complaint under no-fault grounds. This streamlines the process, minimizes cost and aggravation and can save you a lot of emotional stress. While it might feel good to put the blame on your spouse, or call them out in a public forum, if you do not adequately prove the grounds for adultery, you might have to appeal a divorce judgment.

What about your ex’s new lover? Can you sue them for alienation of affection, or breaking up the marriage? The short answer is No. There are only six states left in the U.S. that allow a scorned spouse to sue the person their spouse cheated on them with for breaking up the marriage. In New Jersey, the Heart Balm Act, passed in 1935, prevents a plaintiff from suing a mistress/mister in a personal injury action for causing detrimental damage to their marriage.

Call Our Attorneys at Eveland & Foster, LLC

Whether you just found out about a spouse’s affair, or have finally decided you will no longer tolerate your infidelity, know that you are not alone. Coming to terms with the end of your marriage or partnership is painful, emotionally wrenching, and private. Our attorneys at Eveland and Foster understand the sensitive nature of divorce and adultery. We only represent clients facing a family law issue, and we pride ourselves in providing our clients tailored advice for their specific dilemma. If retained, we will advocate for your interests and counsel you toward the best solution. While it may feel isolating, know that you are not alone. Our attorneys are standing by to help you. Call today to schedule a consultation and discuss your options.

Is Emotional Infidelity Grounds for Divorce in New Jersey?

An emotional affair can be difficult to describe, and even harder to prove, but it is infidelity nonetheless. While no physical contact may have occurred between a married partner and their love interest, often an emotional affair escalates to physical infidelity. In addition, often sharing one’s innermost and personal feelings with someone other than a life partner or spouse can feel more invalidating and betraying to the other spouse. Physical attraction to another person is a natural response, but many married couples consider acting on that spark of chemistry to be a violation of the sanctity of the marriage and the trust one has with their life partner.

Defining Adultery

New Jersey statutes define adultery as sexual intercourse between a married person and someone other than their spouse. Most cases of adultery are not proven with physical evidence, as the other spouse would literally have to be caught in the act. However, a spouse can still use circumstantial evidence to prove that the cheating spouse is engaged in infidelity.

To do this, the plaintiff spouse must show that the cheating spouse has the disposition to commit adultery and opportunity to commit adultery. Disposition could be established if the plaintiff sees her spouse holding hands, flirting, or kissing another person. Or, perhaps one spouse finds explicit text messages or video clips shared between a spouse and another person, or a months-long text message or chat thread discussing highly emotional or sexual conversations. In that case, emotional infidelity could be used to prove disposition. Opportunity can be proven if the plaintiff spouse or a witness sees the defendant spouse leaving a stranger’s house in the middle of night.

Filing for Divorce

If you feel that counseling is no longer an option, you can file for a limited divorce or absolute divorce. Limited divorce, or pendente lite, provides the plaintiff temporary financial support from the defendant before a final divorce hearing. Pendente lite support allows the plaintiff spouse to maintain the family home and support themselves before a final trial date is assigned. Some parties choose to file for absolute divorce immediately, which will trigger a scheduling order for discovery to take place, and a hearing date. Remember that when you file a complaint, you must also file a writ of summons to serve the defendant and your financial statement.

While a plaintiff spouse may be dead set on proving that adultery occurred in the court of law, it is not necessary to file for divorce under the grounds of adultery. Because New Jersey is a no-fault divorce state, simply filing under the grounds of no fault is enough to meet the burden without having to hire a private investigator or snooping around the defendant spouse to prove the elements of adultery, but it does require an 18 month separation period. In addition, while emotional infidelity has destroyed marriages, courts are unwilling to recognize it as an independent ground from physical acts of adultery. If you have questions about how to file or when to file, contact our attorneys at Eveland & Foster.

Schedule a Consultation with our New Jersey Divorce Attorneys Today

If you are unhappy with your marriage, your partner’s infidelity, or suspect your partner has committed adultery, you do not have to put up with it. No one enters a marriage expecting to get divorced, but there is no shame in the “D” word. You deserve to be happy, and you deserve a partner who appreciates you. Our attorneys at Eveland & Foster, LLC understand the sensitivity of these issues, and if hired, will zealously represent you and your interests. With decades of combined experience serving clients throughout Morristown and Central New Jersey, we are the right attorneys for you. Call us today to schedule a consultation.

The American Rescue Plan and Child Tax Credit Updates

The American Rescue Plan Act sent direct stimulus payments in the amount of $1,400 to Americans with a single adjusted gross income of $75,000 or less, and married couples with adjusted gross income of $150,000 or less, as well as their dependents. It also increased funding for COVID-19 relief and expanded the special enrollment period for healthcare. In addition to direct stimulus payments and an extension on unemployment benefits, the Act also increases child tax credits for families with children. Depending on the age and number of children a family has, they could expect to gain at least $600 extra a month for six months, starting in July 2021 from the IRS. How will the new tax credit affect divorced parents?

New Child Tax Credit Updates

The new child tax credit increases from $2,000 per child dependent to $3,600 per child under 5, for this year only. It increases to $3,000 for children ages 6 to 17. Even if you have already received your tax refund for 2020 taxes, if you have child dependents, you should expect to see an additional $600 monthly payment per child, starting in July of 2021. The payments, via direct deposit or paper check, will occur monthly through December 2021, amounting to $1,800 or $1,500, depending on the child’s age. Then, when parents file 2021 taxes in 2022, they will receive an additional $1,800 (or $1,500) lump sum child tax credit. The IRS states that parents can opt out of monthly payments and elect for one lump sum payment in July. To select this option, parents must notify the IRS in advance using a user portal that the IRS expects to be complete before July 2021. Payments are reduced or eliminated for married couples making more than $150,000 per year in adjusted gross income (AGI), and parents filing as head of household or single with an AGI of more than $75,000 per year.

Tax Implications on Divorced Families and Co-Parents

Divorcing couples should have completed a Parenting Agreement or incorporated parenting provisions into a Marital Settlement Agreement. These documents should contain provisions regarding tax implications, and which parent claims the child as a dependent each year. If both parents share legal and physical custody (50/50 overnights), they are both entitled to claim the child as a dependent on state and federal taxes. This means if the parents share one child, one parent might claim the child on odd years, and the other on even years. If parents share two children, they might agree that one parent claims one child every year, and the other parent claims the other child every year. More children on a return requires a strategy to determine what child is claimed by which parent each year. This should be discussed before either parent files their taxes.

 These provisions are only applicable to co-parents who share physical custody including overnight custody with their children during the previous calendar year. If one parent has visitation twice a month, they do not qualify for a child tax credit and cannot claim the child as a dependent, even if they pay child support. If a previously divorced party has recently sought a modification to custody or support, this might impact future tax implications. However, the IRS will look back on the previous calendar year (2020) to make determinations for the new increased child tax credit. Also remember that the child tax credit increase is only for the year 2021, it has not been extended for future years. If you have a child on the way or were divorced in the last few months, you can also update your filing status on the portal the IRS hopes to make accessible to filers by July.

Call Our Morristown Family Law Attorneys at Eveland & Foster, LLC Today

If your ex has wrongfully claimed your shared children as dependents on their taxes, demands their “share” of your economic stimulus payments, or is threatening additional actions against you, you need legal counsel. While there are economic and criminal repercussions for defrauding the IRS and the New Jersey Comptroller, a direct impact is felt on children of divorce and the primary caretaker. If you have primary custody of your children, your ex-spouse should not be claiming them to receive the additional child tax credit and is likely in direct violation of a court order. Our attorneys at Eveland and Foster possess decades of combined experience handling all sorts of family law cases, including post-divorce modification issues and drafting of parental agreements. We also understand the interwoven nature of tax issues in family law cases. We will fight for what is fair and equitable for you and your children. Call today to schedule a consultation.

Disclaimer: This website and information presented are for the purposes of legal marketing and general education. No part of this site should be construed as legal advice. Please consult with an attorney regarding your specific situation. Please do not submit any confidential personal information through this website either by email contact form or chat. No aspect of this advertisement has been approved by the Supreme Court of New Jersey. We welcome your inquiries and offer consultations, however neither contacting our firm nor receiving a consultation establishes an attorney-client relationship.

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