When is marital fault so egregious that it negates an obligation to pay alimony? Certain conducts such as infidelity, mental cruelty or desertion have languished in the dustbin of New Jersey divorce law for decades. So, what’s left to shock the conscience to the degree that a court denies alimony to an otherwise dependant spouse? Circumstances, while few and far between, still exist to justify such an outcome, as demonstrated by the New Jersey Appellate Division’s recent decision in Clark v. Clark (A-1147-11T1) on October 19, 2012.
The salient facts are as follows: the parties were married for 28 years which ended in a divorce on September 21, 2011. Mr. Clark was ordered to pay $600 per month as alimony to Ms. Clark despite the fact that at trial Mr. Clark proved that his wife had secreted approximately $346,000 from their closely held business during the marriage. Although Ms. Clark was ordered to repay half the amount taken, the court ordered Mr. Clark to nonetheless pay alimony, a ruling which Mr. Clark appealed on the legal basis that his ex-wife’s egregious conduct led to a divorce and obviated any alimony award (Mr. Clark alternatively alleged that, at the very least, his alimony obligation should be reduced by virtue of the debt owed from his former wife).
The Appellate Division reversed the decision of the trial court, concluding that the case must be sent back to the trial court to determine if Ms. Clark was entitled to any alimony based on a course of conduct “rising to the level of egregious fault”.
The Court relied on the case of Mani v. Mani, as decided by the New Jersey Supreme Court in 2005, wherein the Court stated that although marital fault is “generally irrelevant” to an alimony calculation, two “narrow exceptions” exist. The first is in such case as the fault affected the parties’ economic life; the second is when fault violated “societal norms that continuing the economic bonds between the parties would confound notions of simple justice.” If such egregious conduct is found to have occurred, the trial court should consider it not in calculating the alimony award but “in the initial determination of whether alimony should be allowed at all.”
The Supreme Court went on to define “egregious fault” as a “term of art” requiring proof transcending acts of “marital indiscretion” such as (by way of example) a spouse who attempts to murder the other spouse or deliberately infecting the other spouse with a “loathsome disease”. The Court in Clark, although not dealing with such graphic examples, nonetheless found that Ms. Clark’s actions “betrayed the sanctity of the marital vows of trust [and] kicked their economic security in the teeth by secretly draining cash from the business.” The Court determined that Ms. Clark “conceived and carried out a long term scheme to embezzle the cash receipts” from the parties’ pharmacy business and that her actions “smack of criminality and demonstrate a willful and serious violation of societal norms”. Citing its own previous ruling in Reid v. Reid, the Court felt free to consider whether “extraordinary, flagrant, economic misconduct may rise to the level of egregious fault and thus warrant a denial of an otherwise valid claim for alimony. The Court took care to emphasize that each case must be evaluated on the “totality of the facts and circumstances” and remanded the case back to the trial court for further findings in such regard.
The Clark decision is important because it extends the rationale established in Mani, above, to egregious financial fault as a potential bar to alimony and should be so considered by divorce litigants and their attorneys in appropriate circumstances.
John Eory is the Co-Chair of Stark & Stark’s Divorce Group in the Lawrenceville, New Jersey office. For questions, please contact Mr. Eory.