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Understanding fault vs. no-fault divorce in New Jersey

On Behalf of | Apr 8, 2020 | Divorce

Divorce is an unfortunate reality for many New Jersey couples. If the relationship is no longer tenable or there are issues that cannot be repaired, parting ways might be beneficial. The reason or reasons for the divorce can be important in some cases. While many states across the nation have shifted to “no-fault” divorce meaning the parties can simply say they have irreconcilable differences and be granted a divorce, New Jersey offers both no-fault and fault-based divorce. Knowing the difference and when it may be appropriate to use one or the other can be key.

The New Jersey courts require the parties say why they are getting a divorce. There are requirements for a no-fault divorce due to irreconcilable differences. The following must be shown:

  • The spouses have lived apart for at least one year – 12 months in a row – before the filing
  • The irreconcilable differences must have been in place for at least six months
  • The justification for the divorce is due to the irreconcilable differences
  • The parties state that a reconciliation attempt will not be successful

Filing for divorce based on irreconcilable differences avoids the need to make accusations against the other spouse just to complete the divorce, thereby making it possible for couples who could have an amicable parting to avoid rancor. This is especially important if there are children, shared interests and other reasons why they may need to maintain some form of relationship. Saying the other spouse is responsible for the divorce derives no benefit when trying to get support or splitting property.

For a fault-based divorce, there are times when it can be useful to reveal why the marriage is coming undone. That includes adultery; desertion for at least one year; extreme cruelty in a mental of physical way in which the person believes him or herself to be in danger; separation if they have lived apart for at least 18 months and there is no reasonable way to reconcile; addiction to alcohol or drugs on the part of the other spouse; the other spouse being institutionalized due to mental illness for at least two consecutive years; if the person was imprisoned for more than 18 consecutive months and the case is not filed after his or her release and they have not resumed living together; and if there was deviant sexual content without consent.

Every divorce will be different and it is wise to have advice tailored to the individual circumstances. If, for example, a couple is on reasonably good terms and is simply trying to end the marriage, a no-fault divorce may be preferable using cordial negotiation instead of contentious dispute. If there was domestic violence or other problems that are difficult to get beyond, it may be better to have legal advice to point out these factors as part of the case. Regardless, it could be useful to have legal assistance from the start. A law firm with experience in family law and divorce may help.