Causes of Action for Divorce

By Peter Van Aulen, Esq.

In 2007 New Jersey enacted into law a no-fault divorce statute. Before this law was passed, if a person wanted to be divorced they either had to be separated for 18 months or have grounds which would justify a dissolution of marriage. Now you do not have to have cause or be separated for any period of time in order to file for divorce in NJ. Your New Jersey divorce lawyer can base it on irreconcilable differences which is a no-fault divorce. The requirements based on irreconcilable differences are as follows:

• There must be differences that cannot be reconciled and which have caused the marriage to break down for at least six months.
• It seems that a dissolution of marriage is warranted.
• There is no reasonable chance the parties will reconcile.

An advantage of filing a divorce in NJ based on irreconcilable differences is that in your complaint you do not have to specify the differences between you and your spouse. You just have to state that there are differences. Also, there is no required period of time that you have to be separated. Therefore, you do not need to feel compelled to conduct a character assassination of your spouse and in return, your spouse may not feel compelled to do a character assassination of you in their counterclaim. However, under New Jersey divorce laws, you still have the right to file for divorce based on cause. It is important to note that under New Jersey law in most circumstances filing for divorce based on cause or demonstrating that the other party is at fault for causing the divorce will not affect the division of assets, or the determination of alimony and child support. Also, unless the fault involves or affects your child (e.g., a spouse commits an act of Domestic Violence in front of child or the spouse is drunk in front of the child) it will not have an impact on child custody. The following are the fault grounds for divorce:

1. Infidelity
2. Abandonment by one spouse in a manner that is both wilful and constant for a period of at least one year;
3. Abuse or cruelty, to the extent that it threatens the health or safety of another spouse, or that it makes it unreasonable to expect that spouse to continue living with their abuser. The last act of abuse or cruelty must have happened within the last three months before the complaint was filed.
4. A period of uninterrupted separation for at least eighteen months in which the parties have lived in different households without any prospect of reconciling.
5. Substance abuse, including alcohol or drug, if they have been addicted for at least a year or more;
6. Mental illness to the point of institutionalization for at least twenty-four months in a row, before the petition for dissolution of marriage is filed;
7. Incarceration of a spouse for a sentence of at least 18 months;
8. Engaging in deviant sexual behaviour voluntarily without obtaining the consent of the other party;

If you choose to file for divorce based on fault, you must remember that this carries with it a serious burden of proof. You will have to show the court evidence, whether through testimony, photos or otherwise, that your spouse has engaged in one of the eight grounds for divorce listed above.

Also, it important to note that in filing for a divorce in NJ whether it is based on cause or irreconcilable differences you must have been residing in the state of New Jersey for at least one year before filing unless you are using adultery as your cause of action. If you are pleading adultery you can file for divorce despite the fact you have not been residing in New Jersey for a year. Divorce can be complex. The results could affect you and your children for years and even indefinitely. This is why it is so important to receive the best possible advice and representation from an experienced New Jersey divorce lawyer. Peter Van Aulen offers a consultation. Call 201-845-7400 today.