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Yes We Can - Get a Divorce: The Most Often Used Causes of Action for Divorce

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Title:
Yes We Can - Get a Divorce: The Most Often Used Causes of Action for Divorce
Date:
July 15, 2009
Author(s):
Jan L. Bernstein
Area(s) of Practice:
Family Law

To obtain a divorce in New Jersey, you need to be a New Jersey resident for one year preceding the filing of the Complaint (except if the Complaint is based on adultery), and you must choose a cause of action, your reason for seeking a divorce.

If you are contemplating divorce, you may have many reasons-financial stressors, differences over whether to have children, fundamentally incompatible personalities. In Court, however, you must file for divorce based on a cause of action-a reason that the State of New Jersey has codified.

Choosing a cause of action on which to base a Complaint for Divorce is probably not one of the more complicated decisions you will make during the divorce process. Ultimately, in most divorces, the cause of action does not affect alimony or equitable distribution-except in the unusual case that the marital fault 1) negatively affects the economic status of the parties or 2) so violates societal norms that continuing the economic bonds between the parties would confound notions of simple justice.

The cause of action could factor into a custody determination, however, especially if abuse is alleged and later proven. For some, the cause of action has considerable emotional significance, especially for a spouse wronged by emotional or physical abuse or humiliated by infidelity, for example. Finally, it can be helpful simply to have an understanding of the causes of action for divorce as you contemplate moving forward.

There are nine causes of action for divorce in New Jersey: adultery, desertion lasting one year, extreme physical or mental cruelty, living separately for 18 months, addiction to drugs or alcohol for one year, institutionalization in a mental hospital for 2 years, imprisonment for 18 months, deviant sexual conduct, and irreconcilable differences.

The majority of divorce Complaints are based on only a few of these. Factual scenarios involving institutionalization or imprisonment (which must occur subsequent to the marriage) are obviously less common than irreconcilable differences. Other causes of action present other hurdles, making them undesirable for many who are contemplating divorce.

Irreconcilable differences became a cause of action in New Jersey in January 2007. The advantage of basing a Complaint on irreconcilable differences is that, as a no-fault ground, it carries less emotional weight (unlike a Complaint based on extreme cruelty, for example.) A Complaint based on irreconcilable differences also is brief (and relatively economical) and requires no lengthy waiting period, as does physical separation for 18-months-the only other no-fault basis for divorce in New Jersey. The only requirements for basing a Complaint on irreconcilable differences are that such differences have existed for at least six months and there is no reasonable prospect of reconciliation.

Extreme cruelty is defined in the statute as "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." Filers typically set forth acts of physical or emotional abuse they have endured, as well as other actions that might not traditionally be viewed as abusive but make it "improper or unreasonable" to live together-a husband who refuses to support his wife's career, or a wife who stashes away a sizable portion of her earnings in a secret bank account. Infidelity can be cited as an incident of extreme cruelty without any requirement of proof, and drug or alcohol abuse can be cited as well, without any requirement as to duration-even though both of these also are separate causes of action.

Pleadings based on adultery are less common. To be granted a divorce based on adultery, the filer must prove the adultery allegations, although circumstantial proof showing inclination and opportunity suffices. The filer may need to have a detective or another witness such as a willing mutual friend or neighbor testify. Filing based on adultery also requires involving the person (or persons) with whom the spouse has committed adultery as co-respondents-which allows that person to defend him- or herself against the allegations. Deviant sexual conduct remains undefined by case law, but the Court Rules also require naming the co-respondent(s) for this cause of action.

The major disadvantage of basing a divorce Complaint on desertion lasting one year (including constructive desertion-the refusal to have sexual relations), living separately for 18 months, addiction to drugs or alcohol for one year, institutionalization in a mental hospital for 2 years, and imprisonment for 18 months is the relatively long duration requirement for each. As noted above, certain of these can be cited as acts of extreme cruelty.

For many contemplating divorce, there is more than one option-and Complaints may cite numerous causes of action. As noted above, irreconcilable differences is attractive because it minimizes rather than fosters the anger and pain that almost always are part of divorce. For others, basing the Complaint on marital fault feels like an important step towards starting a new life. An experienced family law attorney at Riker Danzig can discuss your options for filing a Complaint-or, if your spouse has already filed, a Counterclaim-and guide you in the process in the way that best meets your needs.

 




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