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Does it matter what grounds you choose when filing for divorce?

Not so long ago, a spouse suing for divorce in New Jersey had to allege bad acts or other “fault” to get a divorce. And the other party could fight it, forcing their spouse to stay married.

Under the modern no-fault divorce law, you only need to show “irreconcilable differences.” And a spouse’s objection will not force you to stay in an unhappy or abusive marriage.

The old fault-based grounds for divorce are still on the books in New Jersey. Is there any advantage to seeking a divorce based on adultery, cruelty or other grounds? Usually no, but in certain circumstances there might be.

What are the grounds for divorce in New Jersey?

New Jersey adopted no-fault divorce in 2007. You only need to show:

  1. Irreconcilable differences that have persisted for six months or more
    or
  2. That you have already lived separate and apart for 18 months or more

It is also possible to obtain a fault-based divorce. New Jersey statute still recognizes the following grounds for dissolving a marriage:

  • Adultery
  • Desertion (walked away from the marriage)
  • Extreme cruelty (physical or sexual violence, emotional abuse)
  • Drug addiction or habitual drunkenness
  • Mental illness (institutionalized)
  • Imprisonment (18 months or more)
  • Deviant sexual conduct that the spouse does not consent to

Is there an advantage to seeking fault-based divorce?

In many cases, the grounds are a mere formality. At least one spouse has moved on. You're technically married but leading separate lives. Establishing the other party’s fault has no practical effect in court.

Grounds of adultery has no bearing on custody, alimony or joint property. No judge will be shocked or scandalized by an extra-marital affair. Adultery only comes into play if the spouse spent money on the affair. Any “marital waste” (jewelry, clothes, trips, hotel rooms, etc.) can be subtracted from that spouse’s share of the marital estate. Grounds of adultery also requires evidence; is it worth the expense of hiring a private detective to catch him or her in the act?

Grounds of extreme cruelty, however, may affect divorce proceedings. It will help in obtaining a protection order against an abusive spouse. It may help in securing temporary spousal support. The court will consider evidence of domestic violence in determining child custody arrangements, supervised visitation and final restraining orders.

A divorce lawyer can discuss grounds for divorce and the best way to initiate divorce proceedings for your circumstances.

 

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