Divorce in New Jersey
The process for obtaining a divorce in New Jersey can be emotionally exhausting, particularly when children are involved. With so much at stake, it is crucial to have experienced matrimonial attorneys aggressively fighting for your financial and emotional interests. At Sarno da Costa D’Aniello Maceri LLC, we understand the hardship experienced by our clients in coping with a divorce and we are dedicated to helping you through this life-changing event. Many of our attorneys practice exclusively family law and have extensive knowledge and experience in all aspects of matrimonial litigation.
What are the Grounds for Obtaining a Divorce in New Jersey?
In filing for a divorce in New Jersey you must state a cause of action, or the reason for your divorce, in your divorce complaint. Pursuant to N.J.S.A. 2A:34-2, New Jersey allows for a divorce based on either fault or no fault:
No Fault Causes of Action
In New Jersey, a “no-fault” divorce can be based on either (1) irreconcilable differences, or (2) separation of residences for 18 consecutive months. Irreconcilable differences simply means that there has been a breakdown in the marriage for a period of six months with no reasonable prospect of reconciliation. It is the most commonly used no-fault ground in New Jersey because the parties can avoid airing their dirty laundry in unnecessarily providing information about what caused their divorce.
Fault-Based Causes of Action
N.J.S.A. 2A:34-2 sets forth the following fault-based grounds for divorce:
- Willful desertion for 12 months or more
- Extreme cruelty
- Separation for 18 consecutive months with no reasonable prospect for reconciliation
- Addiction to any narcotic drug or habitual drunkenness for 12 months or more
- Institutionalization for mental illness for a 24 consecutive months
- Imprisonment for 18 months or more
- Deviant sexual conduct
Can a Fault-Based Cause of Action Impact Support Obligations?
In New Jersey, a judge cannot take into account fault or misconduct in making an equitable distribution determination. Chalmers v. Chalmers, 65 N.J. 186, 194 (1974). However, a judge may consider fault or misconduct when determining an amount of alimony to be awarded in two instances: (1) where the fault has affected the parties’ economic life; and (2) where the fault “so violates societal norms that continuing the economic bonds between the parties would found notions of simple justice.” Clark v. Clark, 429 N.J. Super. 61, 73-74 (App. Div. 2012). In other words, marital fault may be considered where the behavior and/or actions have a significant effect on the parties’ economic status, or they were so egregious that an award of alimony would be unjust.
Moreover, although marital fault is not listed as a factor in N.J.S.A. 2A:34-23(b), there is a “catch all” provision in the alimony statute allowing for “any other factors that the court may deem relevant,” which theoretically may permit a court to fashion an alimony award based on what it views as “fit, reasonable, and just.” Mani v. Mani, 183 N.J. 70, 81 (2005).
Many of our clients ask whether adultery, for example, can bar a spouse from an alimony award. The Supreme Court has rejected adultery as an automatic bar to an alimony award, however, such disloyalty can certainly play into the considerations of the court if it fits into the two exceptions noted above or under the “catch all” provision entitling the court to broad discretion in the interests of justice.
Preparing for a Divorce in New Jersey
When a client has decided on a divorce, it is important to provide as much relevant information as they can regarding their case. Our family law firm evaluates each client’s unique needs in order to achieve the best possible result. Our services cover everything from property distribution to determining a child custody arrangement.
Causes of Action for Divorce
When you decide to file for a divorce in New Jersey, you will need to state your cause of action, or the reason for your divorce, in your divorce complaint. New Jersey law allows for a divorce based either on fault or no fault. You can read about the difference between a fault and fault and a no-fault divorce here.
The causes of action for a New Jersey divorce are set forth by statute, N.J.S.A. 2A:34-2. There are seven causes of action for a fault-based divorce and two causes of action for a no-fault divorce. The causes of action from which you can choose are as follows:
Fault-Based Causes of Action
- Adultery: your spouse committed adultery. If you use this cause of action for your New Jersey divorce, then the person with whom your spouse committed adultery is a co-respondent and must be named, served, and permitted to appear in court to respond.
- Desertion: your spouse willfully and continuously deserted you for a period of twelve or more months. This cause of action requires proof that you and your spouse no longer cohabit as man and wife.
- Extreme Cruelty: this includes physical or mental cruelty that endangers your health or safety or makes it unreasonable for you to continue to cohabit with your spouse. If you choose to file for divorce under this cause of action, then you must wait until three months from the last act of cruelty. You must provide an identifiable last act of cruelty under this provision.
- Substance Abuse: Your spouse has a voluntarily induced addiction or habit of using any narcotic drug or engages in habitual drunkenness for a period of twelve or more consecutive months subsequent to the marriage.
- Institutionalization: your spouse has been institutionalized for a mental illness for a period of twenty-four or more consecutive months subsequent to the marriage.
- Imprisonment: your spouse has been imprisoned for a period of eighteen or more consecutive months after the marriage. If you file for divorce after your spouse has been released from prison, then you must prove that you have not resumed cohabiting with your spouse.
- Deviant Sexual Conduct: your spouse voluntarily performs deviant sexual conduct without your permission.
No-Fault Divorce Causes of Action
- Irreconcilable Differences: you and your spouse have had irreconcilable differences which have led to the breakdown of the marriage for a period of six months and there is no reasonable prospect of reconciliation.
- Separation: you and your spouse have been living separate and apart in different residences for a period of 18 months and there is no reasonable prospect of reconciliation.
The cause of action that you choose to use when you file for your New Jersey divorce will depend on the facts and circumstances of your marriage. Need further clarification on Fault v. No-Fault Divorce? Let us help, Fault v. No-Fault Divorce.
To be granted a divorce in New Jersey, one of the parties must satisfy the residency requirements set forth in N.J.S.A. 2A:34-10. Specifically, one of the parties must be a bonafide resident of New Jersey at the time that the cause of action arose and must reside in New Jersey for one year preceding the filing of the Complaint about Divorce. However, the one-year residency requirement does not apply for adultery.
Divorce from Bed and Board
In New Jersey, there are multiple causes of action (or grounds) for divorce, some based on fault and some based on no-fault. There are also different types of divorce: an absolute divorce (which is the type of divorce that most people think of when they hear the word “divorce”) or a divorce from bed and board. A divorce from bed and board can be based on any of the same grounds that are permitted for an absolute divorce. Although a divorce from bed and board is sparingly used today, it is still an option for individuals going through a divorce in New Jersey.
When a couple chooses to get a divorce from bed and board, as opposed to an absolute divorce, the process leading up to the divorce is no different. It is the result that is different. Specifically, unlike an absolute divorce, in a divorce from bed and board, the couple stays legally married. However, like an absolute divorce, they separate from each other, establish alimony and child support, and they distribute the marital property between them using equitable distribution.
So, if the party stays legally married after obtaining a divorce from bed and board, what is the reason for this cause of action? The benefit of a divorce from bed and board, and the primary reason that people choose this rather than an absolute divorce, is that, because the couple is still legally married, some health insurance carriers will allow the non-owner of the health insurance to remain on the health insurance policy without interruption.
The next question is how to ensure that property stays separate once the divorce from bed and board is obtained since the couple is still legally married. Under N.J.S.A. 2A:34-6, once the judgment of divorce from bed and board is entered and as long as it stays in effect, all of the property rights that each person has will be treated as though the couple obtained an absolute divorce. In order to ensure that this occurs, whenever there is a property transaction by either person, they must distinctly recite the existence of the judgment of divorce from bed and board, and reference to the public record must be clearly set forth.
Because the couple is still legally married, neither person will be able to remarry unless they convert the divorce from bed and board into a judgment for an absolute divorce. This will require filing more paperwork and paying court fees.
Further, because the couple is still legally married, should the couple reconcile, they can seek to have the judgment revoked and reestablish their marriage. This is not an option in an absolute divorce, which would require the couple to remarry if they were to reconcile.
If you are thinking about filing for a New Jersey divorce and think that a divorce from bed and board may be the better option for you, you should speak with an experienced New Jersey divorce lawyer who will be able to explain to you its benefits and implications in more detail and help you decide whether a divorce from bed and board or an absolute divorce is better for your situation.
How to Prepare for a Divorce
Divorce is difficult, but coping with this life-changing event can be made easier if you adequately prepare for it ahead of time. This means taking steps to protect both your emotional and financial interests. Find out how to prepare for a divorce.