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No Fault Divorce

If and when you make the decision to divorce your spouse, you must file a Complaint for Divorce.  Within the Complaint, you will have to state your grounds for divorce.  There are two types of grounds, fault or no fault.  Fault grounds lay the blame for the divorce at the footstep of one of the parties.  Adultery, extreme cruelty (mental and/or physical), and desertion are examples of fault grounds.1 No fault grounds for divorce are fewer in number but are more popular when applicable in a matter.  An individual who wishes to commence the divorce litigation in the most inoffensive way will normally opt to file under a no fault ground.

The first “no fault” ground for divorce that New Jersey adopted statutorily is available to those spouses who have been separated for a period of eighteen months or more.  There are a few things to keep in mind if you think you may qualify to plead for this type of no fault ground.  The first thing to keep in mind is that you and your spouse need to be physically separated in “different habitations” for the period of eighteen months.  If you remain under the same roof, even if you sleep in separate bedrooms, you will not be able to satisfy the statute.  Also, the eighteen month period has to be eighteen consecutive months.  If you and your spouse physically separate for eighteen months spread out over a period of three years, you will not be able to satisfy the statute.  The legislature adopted the eighteen month waiting period in order to provide the married couple a “cooling off” period before they are permitted to file for divorce.  The State of New Jersey has an interest in preserving family life and thus the intention of the eighteen month “cooling off” period was to force the parties to seriously consider filing for divorce before doing so.  Lastly, there needs to be no reasonable prospect of reconciliation within the marriage.  You will have to testify that you have no interest in reuniting with your spouse.

There were few parties that were eligible to file under the eighteen month separation no fault ground.  More often than not, the economics involved in a matter prohibit the parties from living separate and apart for such a long period of time.  Also, few parties have the patience to wait a year and a half before filing even if they were able to afford the costs involved in living separate and apart.  Most parties would select the fault ground that most closely applied to their case and attempt to file his/her complaint under that ground.

In 2007, the legislature passed a new no fault ground, irreconcilable differences.  Most people are familiar with this ground as celebrities in California frequently file under irreconcilable differences when seeking a divorce there.  A party seeking a divorce under irreconcilable differences must show that those differences caused the “breakdown” of the marriage for a period of six months and that the differences make it appear that the marriage should be dissolved.  In other words, the marriage must have been suffering from irreconcilable differences for a period of at least six months before the Complaint for Divorce is filed.  There is no separation requirement.  However, similar to the eighteen month separation no fault ground, there must also be no reasonable prospect of reconciliation between the parties.  Most judges hold the view that if a marriage is dead, a divorce should be granted.  Thus, it is usually not difficult to establish a specific basis of irreconcilable differences when one considers the subjective nature of the criteria.

At Donahue, Hagan, Klein & Weisberg, LLC, we will make sure that you are aware of any and all grounds for divorce that apply to the facts of your matter.  After determining which grounds apply to your matter, you may then select the ones that are right for you and the circumstances of your matter.

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1 For a full listing of fault grounds, please see N.J.S.A. 2A:34-2.