Reasons to Seek a Divorce in New Jersey, Part 2: Fault Divorce
We all know that you can’t get a divorce for no provable reason. We talked about what a no-fault divorce is in this post, but do you know what actions can give someone a reason to file for a fault divorce in New Jersey?
What are the Grounds for a Fault Divorce?
Some of the reasons to file for a fault divorce in New Jersey are obvious and more easily proved, like physical abuse or adultery. But others are not so clear-cut. All of the following are explained in the New Jersey Statutes Annotated and are legal grounds for a fault divorce in New Jersey.
Extreme Mental or Physical Cruelty: Defined as behavior that is so mentally cruel that it becomes unreasonable to live together as husband and wife. The New Jersey Statutes Annotated, section 2A:34-2(c), says:
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; provided that no complaint for divorce shall be filed after three months from the date of the last act of cruelty complained of in the complaint, but this provision shall not be held to apply to any counterclaim.
Some states other than New Jersey label this cause “irreconcilable differences.” Most Superior Court Judges hold the modern view that if a marriage is dead, a divorce should be granted. Thus, it is not usually difficult to establish a basis of extreme mental cruelty when one considers the subjective nature of the criteria. There is a three-month waiting period between the last act that was complained of and the filing of the Complaint for Divorce.
Adultery: People are obsessed with trying to prove adultery. It does not need to be confirmed and may be proven by circumstantial evidence. However, most Judges still require confirmation. Circumstantial evidence can be shown by establishing:
- The inclination to commit adultery, such as a close intimate relationship with another person, and
- the opportunity for adultery. Proof that the co-respondent (the person committing adultery with one of the parties) is known to be a co-worker and friend and the co-respondent was observed entering the defendant’s house in the evening and leaving the following morning is usually enough.
Normally, a private detective or unbiased witness is required to prove a circumstantial case. The co-respondent must receive notice that he or she has been named in the Complaint for Divorce and the co-respondent has the right to intervene if desired.
Desertion: Willful and ongoing desertion for twelve or more months, which may be established by proof that the parties have stopped living together as man and wife.
Constructive Desertion: Can take many forms. Constructive desertion is the separation by the will of the offended spouse, justified by acts of cruelty which preceded it. Thus, if separation is because of the husband acting in such a way to make his wife leave, the husband is considered the deserter. Thus, constructive desertion is where an existing cohabitation is put to an end by the wrongdoing of one of the parties amounting to a ground for divorce.
The ending of the sexual relationship by either party is desertion and the continued use of birth control by either against the will of the other is also desertion. Generally, constructive desertion is pleaded when there is a willful refusal of one party to have sexual relations with the other for a period of twelve or more months before the filing of the Complaint for Divorce.
Habitual Drunkenness or Drug Habituation: voluntarily addiction or habituation to any narcotic drug as defined in the New Jersey Controlled Dangerous Substances Act. Also, it is habitual drunkenness for a period of twelve or more consecutive months after marriage and preceding the filing of the complaint.
This is established when a pattern of drinking habitually is demonstrated. The test is not the total number of days, weeks or months that a defendant was drunk. Instead, it determines if, viewed in its entirety, the association with alcohol during that period was steady and substantial enough to undermine and destroy the basic precepts on which a marriage is founded. Normally, extreme mental and physical cruelty accompany habitual drunkenness and drug habituation.
Imprisonment: Imprisonment of the defendant for eighteen or more consecutive months after marriage, provided that where the action is not begun until after the defendant’s release, the parties have not resumed living together after the imprisonment.
Institutionalization: Institutionalization for mental illness for a period of twenty-four or more consecutive months subsequent to marriage and preceding the filing of the complaint for divorce.
The bottom line of action for divorce based on mental illness is the inability of the institutionalized party to be a working partner in the marriage. Weekend leaves from a mental hospital granted to the husband as part of a program of rehabilitation do not interrupt the period of consecutive institutionalization asserted by the wife as a ground for divorce, for example.
Deviant Sexual Behavior: Deviant sexual conduct done willingly by the defendant without the plaintiff’s consent.
Every situation is unique, so it’s important to be backed by people you trust if you are going through a New Jersey Divorce. Contact us at Gruber, Colabella, Thompson, Hiben & Montella for a free consultation.