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THE ASHLEY MADISON SCANDAL – PRACTICAL CONSIDERATIONS

The media remains abuzz on reports that the website, Ashley Madison, was the target of cyberhacking. For those who may not be aware, Ashley Madison is known as the leading website for persons looking to have an affair. It’s slogan is: “Life is short. Have an affair”. Reportedly almost 40 million persons, mostly men, had registered to become members. The hackers purportedly objecting to the immorality of the website accessed account details for some 32 million users of the site going back 7 years and thereafter published the stolen data including names, street addresses, email addresses and phone numbers along with payment transactions (although not full credit card numbers). When word of this became public, the media trumpeted that there would be a flood of divorce filings as a result. Almost daily, reports surfaced of names identified as being on the “list” – some confirmed such as Josh Duggar of the 19 Kids and Counting clan, and others rumored. Besides “celebrities”, politicians, judges, military personnel, lawyers, teachers and others were also identified. Supposedly, almost every zip code was represented on the list. Further, many of the emails registered were from business or government accounts. Fears of being “outed” or of blackmail schemes became rampant. However, beyond the sensational headlines and rumors, what impact does this truly have when it comes to the practice of family law in New Jersey?

As long as there has been marriage, there has been adultery. It is one of the Ten Commandments. It used to be considered a crime in New Jersey. While adultery remains one of the enumerated causes of action for divorce in New Jersey (N.J.S.A. 2A:34-2(a)), adultery being alleged in divorce complaints let alone being the basis upon which a divorce is granted has dropped precipitously over the years. Does this mean that adultery is occurring less frequently? No. Then why? The advent of no-fault grounds for divorce, including irreconcilable differences for one. More importantly, obtaining a divorce on “fault” grounds as opposed to “no fault” grounds has had an ever diminishing impact on the disposition of other issues incident to a divorce. A finding of having committed acts of domestic violence may create presumptions against the perpetrator when it comes to issues of custody of minor children. Drug abuse, alcohol abuse, criminal conduct and other significant improper behaviors may also affect issues of custody. Aside from cases of “egregious fault” such a murder, intentionally infecting the other with a loathsome disease or other outrageous conduct, ordinary “fault” grounds, even adultery, are generally no longer considered a factor in the determination of alimony, except to the extent such fault adversely and substantially affected the parties’ financial status. See generally Mani v. Mani, 183 N.J. 70 (2005). Marital fault is not an enumerated factor courts are to consider in determining issues of child support and the distribution of marital property.

Will the disclosures from the Ashley Madison hack open the flood gates of new divorce filings? Time will tell, but I suspect not. Adulterous relationships, whether done through websites such as Ashley Madison or not, are usually symptomatic of an otherwise troubled marriage. The “outing” may simply speed up the when rather than the if of a marriage’s likely demise. It is also reported that most persons who registered with Ashley Madison never ended up having an actual “affair” through their services. To what extent is the discovery that your spouse was thinking of having an affair to the point of registering with this website itself be enough to cause a spouse to pursue a divorce? Perhaps for some, but for most divorce is a life altering event and is not something done rashly.

Beyond any possible spike in adultery claims, for many there may be much more significant impacts to the “outed” Ashley Madison members and their families. Many of the persons who registered, transacted and communicated with Ashley Madison did so not through their personal email accounts but through their work email accounts, be they government or business, probably to minimize risk of their spouse finding out. The problem is that while the use of a computer and access to the internet are indispensable if not required for most jobs these days, many employers still frown upon their personal use. While it is one thing to check out the current news on CNN or MSN, an employer may take an entirely different view to find out that their computers, email or company time were used to facilitate an adulterous relationship. Compounded by the embarrassment of the public disclosure of their employee’s actions, this may lead to a loss of employment. The economic consequences could be real and devastating. If divorce results, its impact would be dramatic, particularly when it comes to matters of spousal and/or child support. Our case law generally holds that a spouse/parent may not benefit from a diminished support obligation due to a reduction or loss of income occasioned by his or her wrongful voluntary conduct. Despite this, the loss of income is real and so are the practical consequences in handling these matters.

There is another lesson to be learned from all of this. Myself as well as my colleagues at James P. Yudes, PC have written numerous blogs about the significant impact the internet and social media has had upon the practice of family law. As an investigative tool, they can be a gold mine for us attorneys. However, for the litigant’s, they can be a mine field. Websites you visit, the emails you send, tweets on Twitter, posts on Facebook, pictures saved to the Cloud – – none of them should ever be considered private or secret, particularly as hackers become more sophisticated and brazen. The publicity generated by the Ashley Madison scandal should hopefully serve as a wake-up call.