New Jersey’s divorce statute N.J.S.A. 2A:34-2 sets out the fault & no-fault grounds for filing a complaint for divorce in New Jersey. Despite being a “no-fault” divorce state, a divorce in New Jersey can still be filed on fault grounds. And, yes, there are still reasons why someone may decide to file for divorce on fault grounds.
A divorce complaint can be filed based on irreconcilable differences (referred to as the “no-fault” ground) or can be filed on any of the following “fault” grounds:
- Extreme cruelty;
- Willful & continued desertion;
- Addiction to any narcotic drug or habitual drunkenness
- Institutionalization for mental illness;
- Imprisonment; and
- Deviant sexual conduct.
This is the most common ground for divorce today as it is the easiest to establish. The Complaint for Divorce simply alleges that the marriage is irretrievably broken; it has been irretrievably broken for at least 6 months, and there is no reasonable prospect of a reconciliation (i.e., the marriage cannot be fixed). Based on that claim alone, a party has the right to file a “no-fault” complaint for divorce based on irreconcilable differences.
Adultery is one of the only grounds for divorce in New Jersey that does not impose a time restriction. Thus, the Complaint for Divorce can be filed as soon as the adulterous act occurs without having to wait for a specific period (e.g., 6 month waiting period for irreconcilable differences). However, this does not mean that it is easy or simple to establish adultery. For an adultery claim, the party must identify the name of the individual[s] he/she believes the spouse engaged in extramarital sexual intercourse with and the applicable timeframe that the sexual relationship took place.
Prior to the advent of the no-fault divorce complaint, the most common ground for divorce (based on “fault” grounds) was “extreme cruelty”. Extreme Cruelty employs a subjective standard of review and includes any claim of physical or mental abuse that the party believes would make it unreasonable to expect him/her to remain married to the other party.
There are a million and one examples of acts that amount to extreme cruelty – anything from name-calling and verbal bullying to hitting, physical violence, and everything in between.
Willful & Continued Desertion
The focus here is proving that one spouse intentionally left the marital home over the objection of the other party, which desertion has lasted for a period in excess of at least 12 consecutive months. It is important to note that there are other forms of desertion, other than leaving the marital home. However, this ground for divorce is most commonly associated with one spouse who intentionally leaves the marital home.
Voluntarily Induced Addiction or Habituation to Any Narcotic Drug or habitual drunkenness
The focus here is whether, during the marriage, one spouse was addicted to narcotic drugs or was habitually drunk for a consecutive period of at least 12 months.
The test is whether the spouse’s association with alcohol or narcotic drug(s) was sufficiently persistent and substantial to undermine and destroy the basic precepts on which the marriage was founded over that 12-month period during the marriage.
Institutionalization for Mental Illness
Under this cause for divorce, one spouse must have been institutionalized for a mental illness for at least 24 consecutive months after the marriage began. The concept here is that the institutionalized spouse is incapable of acting as a working partner in the marital enterprise due to their institutionalization for said mental illness.
Under this cause for divorce, one spouse must have been sentenced to prison for at least 18 consecutive months after the marriage began before the other spouse can file for divorce based on Imprisonment.
Deviant Sexual Conduct
Consent, or a lack thereof, is the key to establishing Deviant Sexual Conduct as the cause for divorce. While the Complaint for divorce needs to identify some sort of sexual conduct performed by one spouse (viewed as deviant by the other spouse), the real test is whether the other spouse can show said sexual act/conduct was performed on them without their consent. The court's focus is whether the sexual act occurred without consent and is viewed as aberrant by the other spouse.