Grounds for Divorce: Fault and No Fault
Grounds For Divorce – Fault
Fault Grounds: There are several causes of action which specifically allege fault to one party or the other.
Extreme Cruelty: This is what most people had to file under prior to the adoption of Irreconcilable Differences. The Court defined extremely cruelty in Kram v. Kram, 94 N.J. Super. 539 (Ch. Div. 1967). The court in this case defined extreme cruelty as “ . . . that degree of cruelty, either actually inflicted or reasonably inferred, which endangers the life or health of the aggrieved party or renders his or her life one of such extreme discomfort and wretchedness as to incapacitate him or her, physically or mentally, from discharging marital duties”.
Adultery: Yes, you can divorce your spouse for adultery. However, it generally will not affect the distribution of assets and only tends to exacerbate an already unstable situation. Adultery does not need to be corroborated and can be proven using evidence such as the inclination to commit adultery and the opportunity to commit adultery. The courts have ruled that gay and lesbian relationships did constitute adultery and that condoning the cheating is not a defense. However, as I said earlier, the cause of action plays a very small role in the ultimate outcome of the case, and should not be asserted to intentionally make the situation worse. It will not help you in the long run.
Desertion: Desertion under N.J.S.A. 2A:34-2(b) occurs when the parties have ceased to cohabit as man and wife for a period of at least 12 months. More simply put, it is when one party willfully withholds a sexual relationship from the other spouse. Courts have also ruled that the use of contraceptives against the will of the other party will satisfy the statute as well.
Habitual Drunkenness or Drug Habituation: You might want to consider using this cause of action only if you are seeking sole custody of children or if your spouse has used significant marital assets on drugs or alcohol. This statute requires that the habitual use of drugs or alcohol must have occurred for a period of 12 or more consecutive months. When attempting to prove your case, the court will consider all circumstances surrounding the use of substances. It is difficult to prove this cause of action and it is not used very often.
Imprisonment: If your spouse has been in prison for a period of 18 months or longer, you may file for divorce under N.J.S.A. 2A: 34-2(g). If he or she has been in prison for the required period of time but has been released, you may still file under this statute as long as you do not cohabitate after their release.
Institutionalization: This requires institutionalization for a mental illness for a period of 24 or more months. The court has ruled that weekend leave from a mental hospital as a part of treatment does not interrupt the period of consecutive time for institutionalization.
Deviant Sexual Behavior: This is used very rarely in divorce and the sexual conduct must be voluntary on the part of the Defendant and without the consent of the Plaintiff.
As you can see, there are many different grounds for a divorce in New Jersey. However, most causes of action will not affect the ultimate terms of a settlement and should be used only to protect your rights and not to antagonize the other party.
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Fault Grounds: There are several causes of action which specifically allege fault to one party or the other.
Extreme Cruelty: This is what most people had to file under prior to the adoption of Irreconcilable Differences. The Court defined extremely cruelty in Kram v. Kram, 94 N.J. Super. 539 (Ch. Div. 1967). The court in this case defined extreme cruelty as “ . . . that degree of cruelty, either actually inflicted or reasonably inferred, which endangers the life or health of the aggrieved party or renders his or her life one of such extreme discomfort and wretchedness as to incapacitate him or her, physically or mentally, from discharging marital duties”.
Adultery: Yes, you can divorce your spouse for adultery. However, it generally will not affect the distribution of assets and only tends to exacerbate an already unstable situation. Adultery does not need to be corroborated and can be proven using evidence such as the inclination to commit adultery and the opportunity to commit adultery. The courts have ruled that gay and lesbian relationships did constitute adultery and that condoning the cheating is not a defense. However, as I said earlier, the cause of action plays a very small role in the ultimate outcome of the case, and should not be asserted to intentionally make the situation worse. It will not help you in the long run.
Desertion: Desertion under N.J.S.A. 2A:34-2(b) occurs when the parties have ceased to cohabit as man and wife for a period of at least 12 months. More simply put, it is when one party willfully withholds a sexual relationship from the other spouse. Courts have also ruled that the use of contraceptives against the will of the other party will satisfy the statute as well.
Habitual Drunkenness or Drug Habituation: You might want to consider using this cause of action only if you are seeking sole custody of children or if your spouse has used significant marital assets on drugs or alcohol. This statute requires that the habitual use of drugs or alcohol must have occurred for a period of 12 or more consecutive months. When attempting to prove your case, the court will consider all circumstances surrounding the use of substances. It is difficult to prove this cause of action and it is not used very often.
Imprisonment: If your spouse has been in prison for a period of 18 months or longer, you may file for divorce under N.J.S.A. 2A: 34-2(g). If he or she has been in prison for the required period of time but has been released, you may still file under this statute as long as you do not cohabitate after their release.
Institutionalization: This requires institutionalization for a mental illness for a period of 24 or more months. The court has ruled that weekend leave from a mental hospital as a part of treatment does not interrupt the period of consecutive time for institutionalization.
Deviant Sexual Behavior: This is used very rarely in divorce and the sexual conduct must be voluntary on the part of the Defendant and without the consent of the Plaintiff.
As you can see, there are many different grounds for a divorce in New Jersey. However, most causes of action will not affect the ultimate terms of a settlement and should be used only to protect your rights and not to antagonize the other party.
Family Law Blog
Consumer Law Blog