Arons & Solomon | October 21, 2019 | Articles
Substance abuse can be an ugly part of any relationship. When one partner is in the grip of an addiction, it can be impossible to maintain the trust and mutual respect necessary to keep a marriage together. These unfortunate–and possibly unsafe–conditions in the home can significantly impact the sequence of events before, during, and after the divorce settlement.
Impact of Substance Abuse Pre-Divorce
Substance abuse may affect the grounds for divorce on which you decide to file. In New Jersey, a divorce can be considered “fault” or “no fault.” A no-fault divorce is based on irreconcilable differences and does not require either party to make specific accusations against each other.
A fault divorce, on the other hand, requires specific claims and supporting evidence. It can be filed on multiple grounds, including:
- Willful desertion for 12+ months
- Extreme cruelty
- Separation for at least 18 consecutive months with no reasonable prospect of reconciliation
- Voluntarily induced addiction or habituation to any narcotic drug as defined in the New Jersey Controlled Dangerous Substances Act, or habitual drunkenness for 12+ consecutive months
- Institutionalization for mental illness for a period of 24+ consecutive months
- Imprisonment for 18+ consecutive months
- Deviant sexual conduct voluntarily performed by the defendant without the consent of the plaintiff
If the spouse in question checks into rehab before the divorce complaint is filed, you may still be able to file under fault grounds depending on the timing. Always consult a family law attorney to make sure your filing paperwork fits with your overall settlement strategy.
Impact of Substance Abuse on Divorce Settlement
Substance abuse is frequently accompanied by other behavioral issues such as neglect, dishonesty, domestic violence, emotional problems, and irresponsible use of finances. All these factors can and will impact a divorce settlement and custody arrangement.
When a partner has a documented substance abuse problem and history of deception, it can negatively impact his or her credibility in the eyes of the court. A judge or mediator will also consider the defendant’s individual circumstances and observable behavior during the divorce proceedings when making decisions–but still, you might find them less likely to give a known addict the benefit of the doubt in the inevitable “he said, she said” moments of conflict.
Many drug and alcohol habits require huge amounts of money to maintain, particularly when the substances involved are illicit. The strain on a couple’s bank account can be a significant factor in the divorce settlement. The court must determine if marital assets have been dissipated by the substance abusing spouse. If they have, the court must determine the degree to which the spouse without a substance abuse problem must be compensated.
When making child custody arrangements, the state is required to make decisions in the “best interest of the child.” New Jersey is one of the only states without a statute on the books that specifically addresses substance abuse as a factor in parental fitness. This does not mean it won’t be taken into consideration during custody hearings–it simply means the courts have more latitude in deciding the terms of custody.
When one parent has a documented problem with drugs or alcohol, a judge or mediator may conclude such an environment would be detrimental to the child’s welfare and deny custody to the parent. Substance abuse may also affect the parenting time rights of the noncustodial parent.
In New Jersey, noncustodial parents have a constitutional right to spend time with their children, except when their presence is viewed as a direct threat to the child. For this reason, a court may decide parenting time must be limited or supervised by a professional appointed by the court or a person designated by the non-abusing parent.
The custody settlement may also stipulate the spouse with an addiction must abstain from using drugs or alcohol for a certain amount of time before meeting with their children, or that they receive treatment as a condition of spending time with their children.
Impact of Substance Abuse Post-Divorce
Your divorce settlement is the law. But like any other law, it can be changed. Both parties have the right to request modifications to their existing alimony, child support, and/or custody arrangements over time as life circumstances change. This includes events surrounding substance abuse and addiction. If a parent suffers from a relapse, it can significantly affect the custody and visitation arrangement.
This is an incredibly complex and personal issue. Always seek the advice of a family law attorney to ensure your divorce settlement protects the safety and well-being of yourself and your children.