Grounds for Divorce in New Jersey: No-Fault vs. Fault-Based Options

Ask any divorcing couple why they are terminating their marriage and chances are they will simply say they were no longer compatible. In legal terms, a couple divorcing for these reasons has “irreconcilable differences” that make the prospect of the marriage being able to continue highly unlikely. “Irreconcilable differences” is known as a “no-fault” ground for divorce, meaning that neither party is required to show any bad conduct committed by the other party in order to secure an order of divorce. In fact, a divorce can be granted even when one spouse alleges there are “irreconcilable differences” and the other spouse indicates he or she wants the marriage to continue, so long as the court finds that it is more likely than not true that there are such irreconcilable differences in the marriage that the marriage is not likely to survive reconciliation attempts.

Various Fault-Based Grounds for Divorce

Although “irreconcilable differences” is the most-frequently cited ground for divorce, it is certainly not the only ground. There are other grounds available for seeking a divorce known as “fault-based” grounds, so termed because one party must prove by a preponderance of the evidence that the other spouse engaged in one or more specific acts of misconduct before a divorce will be granted.

The “fault-based” grounds for divorce recognized in New Jersey include:

• Extreme cruelty: Any physical or mental act of abuse or mistreatment by one spouse against the other that makes it unreasonable or unconscionable to expect the victimized spouse to continue living with his or her abuser can be considered “extreme cruelty.”
• Adultery: Adultery in New Jersey includes any personal intimate relationship of one spouse with another person outside the marriage, regardless of what specific sexual acts are performed as part of this relationship.
• Desertion: Desertion is present when one spouse willfully leaves the other spouse for a period of at least twelve consecutive months and there is evidence that the parties have ceased living together as a married couple. Evidence that a spouse returned home at various points during a 12-month period (no matter how brief) will defeat a claim of desertion, as would evidence both parties continued to represent themselves as married to one another, shared expenses and income, etc.
• Addiction: If one spouse regularly uses a controlled substance or is routinely and habitually intoxicated for a period of at least twelve consecutive months, that spouse is considered addicted and the other spouse may seek and obtain a divorce based on these facts.
• Institutionalization: A spouse married to an individual who is institutionalized at a mental health facility for twelve or more consecutive months may obtain a divorce based on his or her spouse’s commitment to the mental health facility.
• Imprisonment: Likewise, a spouse married to a person who has been incarcerated for 18 or more months may seek a divorce based on his or her partner’s incarceration.
• Deviant sexual conduct: Deviant sexual conduct is a relative concept that changes its definition depending on each divorcing couple. Generally speaking, deviant sexual conduct may include sexual acts that are outside the scope of acts necessary for procreation and to which one spouse objects.

Why Even Bother with Fault-Based Grounds for Divorce?

In many cases, filing a divorce petition based on “irreconcilable differences” is more than sufficient to obtain a divorce decree and protect your legal interests. Only in extremely rare circumstances does marital fault matter. Brick divorce attorney Peter J. Bronzino can discuss your specific situation with you and help you determine whether a fault-based or no-fault divorce makes more sense for you. Contact Bronzino Law Firm today at (732) 812-3102 and schedule your free initial consultation.