Articles

Grounds for Divorce

By: Michelle L. Olenick, Esq.

In the state of New Jersey there are nine grounds for divorce and seven grounds for the dissolution of a civil union. Although there are multiple grounds for Divorce, the grounds alleged have little to do with the final determination. Of the nine grounds for Divorce, there are two no fault grounds and seven fault grounds.

No Fault Grounds

In New Jersey, one ground for Divorce and Dissolution of a Civil Union is an 18 month separation. This is a no fault ground for divorce. In order to prove an 18 month separation a party must show that the parties have lived separate and apart for a period of 18 months and that they have not engaged in sexual relations with one another during the 18 months. It is only after the 18 month period has elapsed that a Complaint for Divorce or Dissolution may be filed.

The second no fault ground for Divorce is Irreconcilable differences, which was first allowed in New Jersey effective January 20, 2007. Irreconcilable differences is not a ground for dissolution of a domestic partnership and the Legislature has not provided a reason for why there is a difference in this ground.

In order for a party to claim that Irreconcilable differences have occurred, they must be able to prove that there was a breakdown in the marriage caused by irreconcilable differences that occurred at least six months prior to the Complaint for Divorce being filed. A party must also show that there is no reasonable prospect for reconciliation. Unlike the 18 month separation, the parties do not have to live separate and apart in order to file a Complaint based on Irreconcilable differences.

Fault Grounds

There are several fault based grounds for divorce that a recognized in New Jersey. Perhaps the most familiar ground for divorce to most people is the ground of adultery. The New Jersey Statute 2A:34-2 does not define the term adultery; however it has been defined in subsequent case law. In New Jersey adultery is defined as the voluntary sexual intercourse of a married person with a person other than the spouse. Adultery can include extramarital homosexual relations. Unlike the other grounds for Divorce, adultery does not have a statutory waiting period. In order to prove adultery circumstantial evidence of an inclination and opportunity are required.

Under the civil union statute the term adultery is not specifically mentioned but rather states that the "voluntary sexual intercourse between a person who is in a civil union and an individual other than the person's partner in a civil union couple" is a ground for dissolution of the civil union.

Another fault based ground for Divorce is Desertion. Under the New Jersey Statute desertion must be willful and continue for a period of 12 or more months. Desertion may be established by proof that the parties have ceased to cohabit as man and wife. Desertion can also be evidenced by the withdrawal of a sexual relationship between the parties or the continued use of contraceptives by either party against the will of their spouse. Another form of desertion is constructive desertion. Construction desertion is a separation caused by the conduct of one spouse which caused the other spouse to leave the marriage. Under New Jersey statute 2A:34-2.1, desertion is also a ground for dissolution of a civil union.

One of the most commonly claimed grounds for Divorce is Extreme Cruelty. Under the statute extreme cruelty is defined as "including any physical or mental cruelty which endangers the safety or health or the plaintiff or makes it improper or unreasonable to expect the plaintiff to continue to cohabit with the defendant." However, the statute provides that a Complaint for Divorce based on extreme cruelty cannot be filed until after three (3) months from the date of the last act of cruelty complained of. The same or similar language is used in the civil union dissolution statute.

Prior to the enactment of the ground of Irreconcilable Differences, the ground of Extreme Cruelty was essentially used as an irreconcilable differences ground. In order to obtain a divorce based on Extreme Cruelty a party must set forth the alleged act or acts of extreme cruelty. However, the term extreme cruelty is a subjective term and virtually very claim of extreme cruelty is acceptable. Since the term is subjective no proof of the extreme cruelty is required to be granted a divorce. Under to ground for divorce, there is no requirement that the parties live separate and apart prior to the filing of the Complaint.

Another ground for Divorce or Dissolution of a Civil Union in New Jersey is a voluntary drug or alcohol addiction. Under the statute the voluntary drug or alcohol addiction must continue for a period of at least 12 months prior to the Complaint for Divorce being filed. In order to succeed under this ground, the drug or alcohol addiction must be established. It should be noted that the test is not the total days or months that a spouse was drunk but rather the test is whether the addiction was persistent and substantial enough to undermine and destroy the marriage. However, the non-addicted spouse does not have to prove the adverse effects the drug or alcohol addiction has had on the marriage. If an addicted spouse seeks treatment prior to the Complaint for Divorce being filed, the cause of action may still survive. The Courts have interpreted the time limits in the statute to permit a reasonable time between the destruction o the relationship due to the addiction and the filing of the Complaint.

The New Jersey statute also allows for a Divorce or Dissolution of a Civil Union based on institutionalization for mental illness. However, it is mandatory that the institutionalization last for at least 24 consecutive months prior to filing the Complaint for Divorce. The purpose of this cause of action is to allow a divorce when the institutionalized spouse is incapable of participating in the marriage due to the institutionalization. The spouse who filing the complaint based on this ground does not have to prove that the other party is mentally incompetent, only that they are institutionalized.

The New Jersey statute similarly allows for a Divorce or Dissolution of a Civil Union based on a spouses incarceration. In order to file this claim the spouse must have been imprisoned for at least 18 consecutive months following the marriage. If the action is not started until after the spouse is released from incarceration, there must be proof that the parties did not resume living together following the spouse's release. This statue does not put emphasis on why a spouse is imprisoned but rather focuses on the separation of the parties. An interesting note about this ground is that the Legislature specifically designates the imprisoned spouse as the defendant; therefore indicating that an imprisoned spouse cannot file for Divorce on this ground.

Perhaps the rarest ground for Divorce is the ground of Deviant Sexual Conduct. This ground is not recognized as a valid ground for Dissolution of a Civil Union. In order to prevail on the ground of deviant sexual conduct the party alleging the conduct must be able to show that their spouse performed such conduct without their consent. There is no case law on this subject and the Legislature has provided no direction with regard to this ground. Again it is rare for a Divorce matter to be brought on this ground.

In New Jersey at least one of the above mentioned grounds for Divorce must be alleged in a Complaint for Divorce. Although the grounds are necessary to establish a case, the grounds that are alleged do not provide any leverage in determining the financial aspects of a divorce.