Irreconcilable Differences -- New Jersey's Version of No-Fault Divorce

1. What is the status of no-fault divorce in New Jersey?
 
On January 20, 2007, Governor Corzine signed into law a change to the state’s divorce statute, creating irreconcilable differences as a ground for divorce. Before the change, most divorce complaints were based on either separation or extreme cruelty. However, the ground of extreme cruelty requires one spouse to accuse the other of specific acts of cruel behavior, and the no-fault alternative requires spouses to live separate and apart for 18 months before a complaint can be filed. The new law allows for a true no-fault divorce based on either spouse claiming irreconcilable differences which have caused a breakdown of the marriage for six or more months.

The new law has no separation requirement, meaning that two people can file for divorce under this cause of action even if they still live together. Thus, the new ground may be especially appropriate in certain situations, such as when two people have grown apart and wish to end their marriage but still wish to reside together until the divorce is finalized. The new cause of action for irreconcilable differences brings a level of civility and practicality to matrimonial practice; it eliminates the need to allege wrongdoing by a spouse.

2. What are the legal requirements to file for a divorce based on irreconcilable differences?

To file for divorce based on irreconcilable differences, the following requirements must be met:

a. You or your spouse must have lived in New Jersey for 12 consecutive months before the filing of the divorce complaint.

b. You and your spouse must have experienced irreconcilable differences for six months.

The ground of irreconcilable differences does not require that one spouse make specific allegations or accusations against the other.

3. What is the legal impact of the new ground of irreconcilable differences?

The legal impact is that persons may now file for divorce without having to allege marital fault against their spouse or without waiting for the expiration of an eighteen-month separation period. The new law will remove some of the animosity in a divorce. The great majority of cases are more vigorously contested on issues such as custody, parenting time, alimony, child support, and the equitable distribution of the marital assets. The new law is very beneficial because it is only in rare instances that egregious marital faults may be considered by the court to decide the outcome of the case. Marital fault is not a factor in the financial aspects of divorce or in the equitable distribution of the assets. Moreover, even in custody cases, the fact that fault may be attributed to one spouse is not a significant factor.

The new law does not replace the other grounds for divorce, such as adultery, desertion, or extreme cruelty.

If you have children with your ex-spouse, it is very important to keep the divorce as “businesslike” as possible. The divorce case is about splitting up marital assets, paying off your debts, assessing a child support award, negotiating an alimony award, and figuring out what to do with the marital home. A divorce case is not designed to determine which spouse ruined the marriage. This question is a personal one, and it is not the Family Court’s role to make this determination. If you treat your divorce process similar to a business decision and not a personal one, then your results will be much better. Moreover, you will save thousands of dollars in legal fees and you will be able to reach a settlement more quickly.

Most counties simply do not have enough divorce judges. Therefore, even if your case is ready to be tried, you will have to wait many months before you receive a trial date. New Jersey is financially strapped, and the government does not provide the Administrative Office of the Courts with enough funds to hire more judges, staff, mediators, child support hearing officers, and clerks. Because of these facts, the family court system sometimes does not work as efficiently as it could. Therefore, it is in your interest to try to resolve your case as speedily as possible.

The main message is to keep your divorce as civil as possible. If you give the court a lengthy recitation of your spouse’s “dirt” in a divorce complaint based on adultery or extreme cruelty, then it will only enrage your spouse and make the case much more difficult to settle. If you keep the litigation focused on the financial aspects of the case, and on the welfare of the children, then the ultimate outcome will be much better and more cost-effective for all parties.

4. What is the advantage of filing for divorce under the ground of irreconcilable differences instead of extreme cruelty?

If you are thinking about filing for a divorce, the recent change in the law may make the divorce process a little easier for you. When neither spouse has to blame the other for the divorce, it can reduce the level of conflict in the divorce litigation.

Most divorces ultimately end with a negotiated settlement. The parties strive to reach a settlement that is written down in a marital contract called a property settlement agreement (PSA). It is very expensive to have a full-blown divorce trial. There are endless adjournments. Moreover, the cases are not tried in a continuous manner. In most divorce cases, the parties only try a few hours of their case for each day that they are in court. The amount of waiting time that the litigants have to endure is considerable. Moreover, your lawyer must be paid during this waiting time, so it can be very expensive. Therefore, it is very important to set a more peaceful tone in the divorce complaint. This may avert a full-fledged divorce war and could encourage a quicker settlement.

In almost all divorces, an allegation against a spouse, even when it can be proven by evidence, will not affect the outcome of the divorce. Therefore, even if you claim that your spouse had an adulterous affair, it will not improve your chances of receiving more in child support, alimony, or property.

If you have already filed for divorce based on extreme cruelty or adultery, you may want to ask the court to amend your divorce complaint to one based on irreconcilable differences. By doing this, you may be able to withdraw the allegations of bad acts by your spouse. You can only amend your complaint if you have not yet reached a final judgment of divorce.

5. Are there any situations where I should still file for divorce under the ground of extreme cruelty?

The divorce ground of extreme cruelty may still be viable in many cases. There are times when an extreme cruelty claim for divorce is appropriate — for example, when a couple has a history of domestic violence. New Jersey law presumes that the victim of domestic violence is the more appropriate parent to have physical custody of the child or children. For this reason, a plaintiff who has been a victim of domestic violence may want to base his or her complaint for divorce on the defendant’s acts of extreme cruelty. If there are custody issues in a divorce case, and if there is a history of domestic violence, then it is imperative to file under the ground of extreme cruelty. If a custodial parent can prove that she has been a victim of domestic violence, then the non-custodial parent will have almost no chance of obtaining physical custody of the children.

6. What are the other grounds for divorce in New Jersey?

The ground of irreconcilable differences does not replace the other grounds for divorce. The other major grounds of divorce based on extreme cruelty and adultery are still “alive and kicking” and may be appropriate to allege in certain situations. The grounds for divorce in New Jersey include:

a. Adultery;

b. Willful and continued desertion for the term of 12 or more months;

c. Extreme cruelty, which is defined as including any physical or mental cruelty which endangers the safety or health of the plaintiff or makes it improper or unreasonable to expect the plaintiff to continue to cohabit with the defendant;

d. 18-month physical separation;

e. Voluntarily induced addiction or habituation to any narcotic drug;

f. Institutionalization for mental illness for a period of 24 or more consecutive months;

g. Imprisonment of the defendant for 18 or more consecutive months after marriage; and

h. Deviant sexual conduct voluntarily performed by the defendant without the consent of the plaintiff.

The new irreconcilable differences law does not relieve the parties of the New Jersey residency requirement. Except for divorces that are filed on the grounds of adultery, one of the spouses in a divorce action must have resided in New Jersey for at least one year preceding the filing of the divorce complaint.

7. How do I determine which ground to allege in my complaint for divorce?

Every divorce case is different and unique. Deciding the most appropriate ground for your divorce is fact-sensitive and should be made after consultation with an experienced lawyer. A family law attorney will be able to analyze your case to determine which cause of action for divorce is appropriate for your individual situation. Remember, it is always important to hire a lawyer if you are getting a divorce. If you don’t have the money to hire legal counsel, then borrow the money from friends or relatives. Representing yourself in court is not advisable. New Jersey divorce laws are complicated, and the divorce process can be daunting. You could double your legal problems if you try to represent yourself in court.