Although New Jersey became a “no-fault” state in 2007, no-fault divorce was an addition to grounds based divorces, not an elimination grounds. There is now a choice whether to seek divorce on a no-fault or fault based grounds.
A fault based divorce gives no advantage on determinations of property division, child support or alimony. As to child custody, unless the fault claims negatively impact the children, fault grounds provide no benefit in custody determinations, either.
No-Fault Divorce: Irreconcilable Differences
In New Jersey, the reference to “no-fault” divorce means that there are irreconcilable differences between the parties resulting in a breakdown of the marriage for at least six months. The parties need not be separated for any period of time whatsoever.
In addition, it must appear that:
- The marriage should be dissolved and
- There is no reasonable chance for reconciliation
Because no-fault divorce eliminates the need for blame, no one spends hours on the witness stand defending themselves and their character, limiting the length and cost of trial and the long lasting emotional and psychological impact of that. If you do not attack, the hope is that your spouse will not attack either, though there is no guarantee of that.
Also, without the emotional assaults, negotiation of a reasonable settlement on the remaining issues tends to be less assaultive as well.
Cause Based Divorce
Divorces based on fault or cause require allegations of wrongdoing by the other spouse that entitle the spouse bringing the action to the divorce. Often, the response to a complaint based on wrongdoing is responded to with a counterclaim alleging wrongdoing of the party bringing the action. There are strategic benefits as well as detriments to fault based actions, best directly discussed with your attorney.
For success in the divorce action, there must be sufficient proof of the allegations of fault on whichever particular ground or grounds chosen from the following:
- Desertion, sometimes called abandonment, for 12 or more months
- Extreme mental of physical cruelty that endangers the safety or health of the plaintiff or such that it makes it unreasonable for continued cohabitation, but the action cannot be commenced until 3 months after the last act of cruelty
- Physical separation, in two different residences, for eighteen consecutive months or more, with no possibility of reconciliation
- For a period of 12 or more months, voluntary addiction or habituation to narcotics or habitual drunkenness
- Prior to filing the action and for a period of 24 or more consecutive months, institutionalization for mental illness
- Spouse’s imprisonment for 18 months or more
- Performance of deviant sexual conduct by a spouse, absent the consent of the other spouse
In Conclusion, whether your divorce should be no-fault or grounds based will be determined based upon your facts as well as the most beneficial strategy for your particular case and situation. For these decisions, you need the best possible advice.
If you need to discuss your divorce and what strategy is best in your circumstances, call the Law Offices of Peter Van Aulen for a free consultation at 201-845-7400.