When you file for divorce in New Jersey, your Complaint for Divorce form must include the reasons for dissolving your marriage. In the legal world, this is known as “grounds for divorce.” You must include your grounds for divorce, whether it is contested or uncontested or based on fault or no fault.
But describing the grounds for divorce can be complex and lead to questions like, “Do I have to file for fault if my spouse was unfaithful?” or “How will a fault-based divorce impact other aspects of the process?”
Preparing for these questions can help you feel more confident in your next steps. Read on to learn more—and if you still have questions, an experienced divorce attorney can walk you through the process.
No-fault grounds for divorce in New Jersey
Grounds for a no-fault divorce are usually listed as “irreconcilable differences” or “irretrievable breakdown of the marriage.” Because New Jersey is an equitable distribution state, most fault grounds often do not impact the financial outcomes in a divorce settlement.
Irreconcilable differences are among the most commonly cited grounds for divorce today, but this wasn’t always the case.
Although the National Association of Women Lawyers began working on no-fault divorces as early as 1947, they were unavailable in New Jersey until 2007. Before that, divorcing spouses were required to assign responsibility by listing the grounds for fault in their divorce petitions, such as extreme acts of mental cruelty.
By contrast, no-fault or irreconcilable differences grounds allow couples seeking a divorce to split without making specific accusations of wrongdoing by either party as long as:
- You and your spouse have lived in NJ for 12 consecutive months prior to filing
- The irreconcilable differences have lasted for at least six months prior to the time of filing
- There is high certainty that the differences cannot or will not be resolved, and you can no longer live together as a married couple
Because neither party must prove “guilt” in court, grounds of irreconcilable differences can reduce the level of contention in the divorce process.
Fault grounds for divorce in New Jersey
Fault-based divorces require that one party prove that the other did something that irretrievably broke down their marriage.
Note that filing for a fault-based divorce does not necessarily mean your divorce will be contentious or punitive to the other party. However, you must produce evidence supporting your claims, and your former partner may choose to contest the grounds upon which you’re filing for divorce.
Discuss your divorce options with an experienced family law attorney for information about which course suits your unique situation. If you decide to pursue a fault divorce, it should fall into one of the categories listed below.
As grounds for divorce go, extreme cruelty can cover everything from physical abuse to hurtful insults.
If you or members of your household have been the victims of regular physical, emotional, verbal, or financial abuse, this will need to be proven to a judge. This also may mean that you would be best served with an application for a domestic violence restraining order, something you should discuss with your family law attorney.
As long as you and your attorney can document a pattern of cruelty that dates back to at least three months before you filed for divorce, you can use cruelty as grounds. Depending on the claims, this is one of the few grounds that could affect issues of custody and parenting time.
Adultery grounds allege your spouse was unfaithful to you during your marriage. But if you use adultery as grounds for divorce, you must name the person with whom your ex is having an affair in your divorce complaint. This individual—the co-respondent—will be served the petition along with your former spouse and will have to defend themselves against the allegations in court.
While there is a one-year residency requirement for filing for divorce in NJ, it can be waived by the courts if you discover infidelity during the first 12 months of living in the Garden State.
Note, however, that allegations of adultery typically do not affect child support decisions or custody arrangements. They can affect spousal support or equitable distribution in specific circumstances, but this is a fact-sensitive analysis best discussed with an experienced divorce attorney.
Deviant sexual conduct
NJ law defines deviant sexual conduct as voluntarily performing sexual acts without the plaintiff’s consent. Criminal charges may be warranted in these situations, so it’s essential to have a skilled attorney on your side if you list deviant sexual conduct as grounds for your divorce.
You can use separation as grounds for divorce if you and your ex have lived in physically separate residences for at least 18 months.
However, this has become a less commonly utilized cause of action since no-fault divorces became legal in New Jersey.
If your soon-to-be ex has been incarcerated in either prison or jail for at least 18 months, you can use their imprisonment as grounds for divorce. They will need to be served papers while incarcerated.
Your attorney will also have to keep administrators at the facility where your ex is being held apprised of any developments in the case.
If you are divorcing someone who is incarcerated, retaining legal services to ensure that your rights are protected is wise. An experienced attorney can help you navigate the additional issues that arise when legally separating from someone in the criminal justice system.
Mental health issues can create serious challenges for couples, particularly when the individual with a mental illness cannot access or consistently receive treatment or medication. If your spouse has been admitted to a facility for mental health concerns for 24 or more months of your marriage, you can use institutionalization as grounds for divorce.
Under NJ law, desertion can be used as grounds for divorce if your spouse has physically left your residence with no intention of returning, or has otherwise refused to engage in the marital relationship (sexually or emotionally) for at least one year.
Addiction can be used as grounds for divorce if your former spouse is addicted to drugs or alcohol and has not sought treatment for at least one year. In this instance, you will need to be able to prove that they have substance abuse issues.
If you are planning to use addiction as grounds (which some individuals may do as part of their child custody concerns), it’s important to document the substance abuse. If you can safely and legally do so, it’s best to try and document any proof of drug or alcohol use, unsafe environments, bad judgment on your spouse’s behalf, or other support for your claims.
Note that the one-year time stipulation will start over if your spouse seeks treatment, even temporarily.
Are you ready to file for divorce in New Jersey?
Whether you want to file for a fault or no-fault divorce, the team at Jacobs Berger has extensive experience helping our clients file, negotiate, and finalize their divorces. With an in-depth understanding of family law best practices, we are committed to de-stressing the divorce process.
Contact us to schedule your strategy session with our team.