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The state Supreme Court has agreed to decide whether a statute that allows courts to consider marital fault in the calculation of alimony is archaic and inequitable in its enforcement. The Court’s granting of the petition for certification in Mani v. Mani, No. 55,428, has the matrimonial bar nervous, so much so that the State Bar Association wants to enter the case. The trustees voted on Feb. 20 to submit an amicus brief. The petitioner, James Mani, is seeking more alimony from his former wife. Ocean County Superior Court Judge Wendel Daniels had awarded him a modest $610 a week. When he appealed, the Appellate Division justified the award on a ground not raised below: that N.J.S.A. 2A:34-23g allows a reduction in alimony for a dependent spouse found at fault for the breakup. Since Mani was found to have committed adultery, he fit the bill. “Though the alimony award may be insufficient for defendant to maintain his relaxed marital lifestyle, the reduction in his living standard is justified, in part, by the finding that plaintiff established he was adulterous,” wrote Judges Michael King, Dennis Braithwaite and Joseph Lisa. But Mani’s lawyer, Dale Console, asks the court to decide the weight of marital fault – if any – “in light of the policy considerations of no-fault divorce, current societal views on marital dissolution and current matrimonial practice.” While marital indiscretion was once a complete bar to alimony, case law in the past 25 years has “witnessed the demise of fault as a factor [in alimony determinations] except in the most aggravated cases,” argues Console, who heads a firm in Kingston. She also maintains that the trial court and Appellate Division exhibited gender bias against the husband for being supported by his wife. The Appellate Division ruling criticized him for his “sense of entitlement to the largesse of the plaintiff’s family” and said he “does not appear at all industrious.” The couple’s sole income was from the wife’s $3 million in investments. “I think that it’s plain on the face of it, if this was a woman we wouldn’t have this result,” Console says. Console also argues that the Appellate Division exceeded its jurisdiction by making independent findings that the husband’s fault justified a reduction in support. The trial judge had calculated alimony using statutory factors such as duration of the marriage and the ability of parties to pay. The fact that Daniels made no finding of adultery “leads to the conclusion that the conduct complained of did not justify any adverse impact on defendant’s rights to support following a 27-year marriage,” Console argues. On the other side, Brenda Mani’s lawyer says Console overstates the role of fault in computing alimony. “I’m not taking a position that marital fault is a consideration that should be given a lot of weight,” says Patrick Collins, a partner at Livingston’s Franzblau Dratch. “I’m simply saying that an offhand reference in an unreported opinion that it might affirm a supposedly low alimony payment is not a cause for concern.” Stirring Up Dirt and Emotions Nevertheless, the State Bar’s Family Law Section is concerned that citing a spouse’s adultery as justification for reduced alimony creates an incentive to litigate over fault for a divorce. If the appeals court ruling stands, matrimonial lawyers say, more divorce cases will go to trial and more litigants will hire detectives to spy on their spouses. Matrimonial attorneys interviewed say they hope the Supreme Court will ban the use of marital fault in alimony calculations, calling it time-consuming and counterproductive. “Good matrimonial attorneys try to keep emotion out of the case,” says John Paone Jr., of Woodbridge’s Paone & Zaleski. “This would force parties to turn a blind eye to all of that and get involved in allegations against the other side, because there’s a pot of gold on the other side if I can make the other side look like a bum.” Since New Jersey does not grant divorces based on irreconcilable differences, unlike many other states, most cases are based on the complaint of marital cruelty, says Cary Cheifetz, a partner at Ceconi & Cheifetz in Summit. That can encompass anything the litigant says makes the marriage unbearable, from a workaholic spouse to one whose meatloaf contains too many onions, Cheifetz says. Cheifetz says he generally does not plead adultery in cases where his client says the facts support such a claim, but would be more likely to do so if the Supreme Court upholds Mani. “It’s going to make the process longer and more expensive,” Cheifetz says. “The biggest complaint the public has about the divorce process is that it takes too long and costs too much.”

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