No-Fault Divorce in New Jersey: What Does It Mean? How Does It Work?

Monday, November 14, 2016

If a divorce is in your future, you will most likely get a no-fault divorce. A no-fault divorce means that no one needs to be blamed for the break-up of the relationship. It doesn’t mean the divorce is without any conflicts or disagreements. It also doesn’t mean there won’t be any litigation. Unless the parties can agree on financial issues and the future of their children, litigation (or mediation, arbitration, or Collaborative Law) may be the means by which those disagreements are resolved.

Under New Jersey law, there are no-fault divorces and fault-based divorces, and there are contested and uncontested divorces. No-fault divorce means a Judge will end the marriage due to the,

  • Separation of the parties (you and your spouse have been living in different places for at least 18 consecutive months), or
  • Irreconcilable differences of the parties (you and your spouse have had irreconcilable differences for at least six months).

A benefit of a no-fault divorce is that there does not need to be proof that either spouse caused the marriage to end, and in some sense bears moral blame for that ending. To file for a divorce in New Jersey based on separation,

  • You or your spouse must have lived in the state for 12 consecutive months before the filing of the divorce complaint.
  • The two of you must have lived apart (in different residences) for at least 18 consecutive months before starting the divorce action.
  • There is no reasonable prospect the parties will reconcile.

For a no-fault divorce based on irreconcilable differences,

  • At least one of you must have lived in New Jersey for 12 consecutive months before the filing of the divorce complaint.
  • The two of you must have experienced irreconcilable differences for a period of six months.
  • Due to these irreconcilable differences it appears that the marriage should end.
  • There is no reasonable chance for reconciliation.

This means it’s not required that the parties separate, only that they have irreconcilable differences even if they’re still living in the same residence.  The spouses may simply have grown apart emotionally and want to put an end to their marriage.

The other type of NJ divorce is one based on a specific fault ground. Desertion, extreme cruelty, adultery, substance addiction, gambling addiction, and sexual deviancy are the most common grounds for fault-based divorces.

  • Desertion: This occurs when one spouse leaves the other spouse for at least 12 months against the wishes of the other spouse. The party who was deserted must wait for at least these 12 months before filing a complaint.
  • Extreme cruelty: This includes acts of cruelty ranging from unpleasantness and emotional abuse to severe physical violence.
  • Adultery: One spouse charges the other with unfaithfulness. The spouse and the paramour are named in the Complaint for Divorce.
  • Substance or gambling addiction: One spouse charges the other with addictive behavior that has caused the breakdown of the marriage.
  • Sexual deviancy: One spouse charges the other with sexual misconduct that threatens the central core of the parties’ marriage.

Other fault based grounds include institutionalization for mental illness and incarceration, both of which also threaten the central core of the marital relationship.

Even if there are grounds for an at-fault divorce, there are practical reasons to file for a no-fault divorce.

  • If neither side needs to blame the other, the level of conflict can be better controlled.
  • If the party at fault doesn’t want to admit his or her actions it could be very costly and time consuming to try to prove the party’s misdeeds.
  • Even if that is proven a finding of fault won’t benefit you if a judge also needs to decide financial issues and issues involving custody, support and visitation of your children.
  • If one or both of the parties wants to avoid the embarrassment of a publically available divorce complaint alleging wrongdoing or a public trial where there would be evidence of such things as extreme cruelty or adultery a no-fault divorce would be the way to go.

On the other hand, if the parties are about to engage in a custody and parenting time fight, it is almost certain that filing on a fault ground will support each party’s claim to be the better parent, or one party’s claim that the other parent needs to be evaluated for possible supervisory parenting time or less than equal legal or physical custody.

Most divorces ultimately end with a negotiated settlement. If the parties can resolve disputes between them, the divorce is uncontested. If a trial (or arbitration) takes place to resolve those differences, then the divorce is contested. Issues that need to be addressed include,

  • Alimony/Spousal Support: Money paid by one spouse to support the other spouse during and/or after the divorce.
  • Division of Real Property: Do you own a house, a building or a parcel of property? Did one spouse own it prior to the marriage? Do both spouses have ownership interests in the property? If so what should happen to this property? Sold and the proceeds divided? One party gets title while paying a given amount to the other spouse?
  • Division of Personal Property: Who gets what personal property such as cars, appliances, computers, jewelry, expensive tools, furniture, etc.?
  • Division of Debts: Who will pay the unpaid debts? This includes credit cards, car loans, mortgages, and other outstanding bills.
  • Insurance Policies and Premiums: Do you have health insurance? Is it from your employer or your spouse’s employer? If it’s from your spouse it will not cover you after the divorce. Who will pay health, homeowner’s and life insurance premiums? Will the beneficiaries of a life insurance policy change?
  • Child Custody: This includes physical (who lives with the child) and legal (who makes important decisions). Who will your children live with and when? Who will make important decisions concerning their lives? Who will be able to make education and health care decisions? If a parent doesn’t have custody will he or she be allowed to visit with the child?
  • Child Support: If you have primary physical custody of the child, how much support will the other parent pay? Who will be responsible for paying for dental or medical expenses? Educational expenses?

If you have questions about divorce law or you are considering getting a divorce, we can help. For compassionate counsel and tough advocacy, contact Hanan M. Isaacs, P. C., by calling our Central Jersey law offices at 609-683-7400, or contact us online.  You will be glad you did.