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Irreconcilable Differences
New Jersey's Version of a No-Fault Divorce

By Theodore Sliwinski, Esquire

  1. What is New Jersey's version of a no-fault divorce?

    On January 20, 2007, Governor Corzine signed into law a change to the divorce statute. The new law created the ground for divorce for irreconcilable differences. Before the law change, most divorce complaints were based on either separation or extreme cruelty. The grounds of extreme cruelty required one spouse to accuse the other of specific acts of cruel behavior. The new law now allows for a true no-fault divorce based on either spouse claiming irreconcilable differences.

    Prior to this new cause of action, a person wanting a divorce had to establish fault such as extreme cruelty or adultery. The only no-fault alternative required spouses to live separate and apart for 18 months prior to filing a complaint for divorce. Many people considering divorce felt very uneasy alleging fault grounds necessary to be granted a divorce without a lengthy separation. Now, the legislature has created a new no-fault cause of action, without the 18-month separation requirement known as "irreconcilable differences."

    The new law means that a complaint for divorce can now assert the existence of irreconcilable differences which have caused a breakdown of the marriage for six or more months. This new law has no separation requirement, meaning that two people can now file for divorce under this cause of action if they still live together. Moreover, this ground for divorce may be appropriate to allege in certain situations such as when two people have simply grown apart and wish to end their marriage. However, the couple still wish to reside together until the divorce is finalized. The new cause of action brings a level of civility and practicality to matrimonial practice. This ground for divorce eliminates the need for spouses to allege wrongdoing on their spouse's part.

  2. What are the legal requirements necessary to file for a divorce for irreconcilable differences?

    To file a divorce based on irreconcilable differences, the following requirements must be met:

    1. You or your spouse must have lived in New Jersey for 12 consecutive months before the filing of the divorce complaint.
    2. You and your spouse must have experienced irreconcilable differences for six months.

    This new ground for divorce further allows either husband or wife to file a complaint for divorce without any specific reason. The irreconcilable differences basis for divorce does not require that one spouse make allegations or accusations against the other.

  3. What is the legal impact of the new ground for divorce under irreconcilable differences?

    The legal impact is that persons may now file for divorce without having to allege marital fault against their spouse, or await the expiration of eighteen months separation. The law will remove some of the animosity in a divorce. The great majority of cases are more vigorously contested with regard to such issues as custody, parenting time, alimony, child support and the equitable distribution of the marital assets. The new law is very beneficial because it is only in rare instances wherein egregious marital faults may be considered by the court to decide the outcome of the case. Marital fault is not a factor in the financial aspects of divorce, and in the equitable distribution of the assets. Moreover, even in custody cases, the fact that one's spouse has committed marital fault is not a significant factor. Finally, the new law does not replace the other grounds for divorce such as adultery, desertion or extreme cruelty.

    If you have children with your ex-spouse then it is very important to keep the divorce litigation as "business like" as possible. The divorce case is about splitting up the marital assets, paying off your debts, assessing a child support award, negotiating an alimony award, and figuring out what to do with the marital home. A divorce case is not designed to determine which spouse ruined the marriage. This question is a personal one, and it is not the family court's role to make this decision. If you treat your divorce process similar to a business decision and not a personal one, then your results will be much better. Moreover, you will save thousands of dollars in legal fees, and you will be able to reach a settlement much quicker.

    Most counties simply do not have enough divorce judges. Therefore, even if your case is ready to by tried, you will have to wait many months before you receive a trial date. New Jersey is financially strapped, and the government does not provide the AOC with enough funds to hire more judges, staff, mediators, child support hearing officers, and clerks. Therefore, the family court system sometimes does not work as efficiently as it could. Therefore, it is your interest to try to resolve your case as speedily as possible. If you have a trial and if it last three days, then you could easily spend 10 hours waiting at court during the week for your trial. You will have to pay your lawyer a few thousand dollars for legal fees for this waiting time. It is not the lawyer's fault that he has to wait at court for your trial to start. The main message is to keep your divorce as civil as possible. If you give the court a lengthy recitation of your spouse's "dirt" in the divorce complaint based on adultery or on extreme cruelty then it will only enrage your spouse, and make the case much more difficult to settle. If you keep the litigation focused on the financial aspects of the case, and on the welfare of the children, then your ultimate outcome will be much better and cost effective for all parties.

  4. What is the major advantage of filing for divorce under the grounds of irreconcilable differences instead of extreme cruelty?

    If you are thinking about filing for a divorce, then this change in the law may make the divorce process a little easier for you. When neither spouse has to blame the other for the divorce, it can reduce the level of conflict in the divorce litigation. Most divorces ultimately end with a negotiated settlement. The parties strive to reach a settlement that is written down in a marital contract called a property settlement agreement (PSA). It is very expensive to have a full-blown divorce trial. There are endless adjournments. Moreover, the cases are not tried in a continuous manner. In most divorce cases, the parties only try a few hours of their case for each day that they are present court. The amount of waiting time that the litigants have to endure is considerable. Moreover, your lawyer must be paid during this waiting time, ad it can be very expensive. Therefore, it is very important to set more peaceful tone in the divorce complaint. This may avert a full-fledged divorce war, and it could encourage a quicker settlement.

    It is important to recognize that, in almost all divorces, an allegation against a spouse, even when it can be proven by evidence, will not affect the outcome of the divorce. Therefore, it you claim that your spouse had an adulterous affair this will not improve your chances of receiving more in child support, alimony, or a larger share of equitable distribution.

    If you have already filed for divorce based on extreme cruelty, or adultery, then you may want to ask the court to amend your divorce complaint to solely on irreconcilable differences. By doing this, you may be able to withdraw the allegations of bad acts by your spouse. You can only amend your complaint if you have not yet reached a final judgment of divorce.

  5. Are there any situations wherein I should still file for a divorce under the grounds of extreme cruelty?

    The divorce grounds of extreme cruelty may still be a viable in many cases. There are times when an extreme cruelty claim for divorce is appropriate - for example, when a couple has a history of domestic violence. New Jersey law presumes that the victim of domestic violence is the more appropriate parent to have physical custody of the child or children. For this reason, a plaintiff who has been a victim of domestic violence may want to base his or her complaint for divorce on the defendant's acts of extreme cruelty. If there are custody issues in a divorce case, and if there is a history of domestic violence, then it is imperative to file for extreme cruelty. If custodial parent can prove that she has been a victim of domestic violence, then the non-custodial parent will have almost no chance of obtaining physical custody of the children.

  6. What are the other grounds for divorce in New Jersey?

    The grounds for divorce based on irreconcilable differences does not replace the other grounds for divorce. The other major grounds of divorce based on extreme cruelty and adultery are still "alive and kicking" in the divorce process. These grounds may be appropriate to allege in certain situations. These grounds include:

    1. Adultery;
    2. Willful and continued desertion for the term of 12 or more months;
    3. 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;
    4. 18-month physical separation;
    5. Voluntarily induced addiction or habituation to any narcotic drug;
    6. Institutionalization for mental illness for a period of 24 or more consecutive months;
    7. Imprisonment of the defendant for 18 or more consecutive months after marriage; and
    8. Deviant sexual conduct voluntarily performed by the defendant without the consent of the plaintiff.

    It is important to emphasize that the new irreconcilable differences law does not relieve the parties of the New Jersey residency requirement. Except for divorces that are filed on the grounds of adultery, one of the spouses in a divorce action must have resided in New Jersey for at least one year preceding the filing of a complaint for divorce.

  7. How do I determine what grounds for divorce to allege in my complaint?

    Every divorce case is different and unique. The ultimate decision as to what grounds of divorce to choose is a fact-sensitive one that should be made with you and an experienced lawyer. A family law attorney will be able to advise you through your case to determine which cause of action for divorce is appropriate for your individual situation. Remember, it is always important to hire a lawyer if you are getting a divorce. If you don't have the money to hire legal counsel, then borrow the money from friends or relatives. Representing yourself in court is not advisable. The divorce laws are complicated, and the divorce process can be daunting. If you were sick would you self-medicate yourself instead of going to visit a doctor? If your brakes wore down, would you try to fix them without going to the mechanic? If your pipes exploded would you try to fix your plumbing without calling a plumber? Get the message! You could double your legal problems if you try to represent yourself in court.

Theodore Sliwinski, Esquire, dedicates his practice to providing quality and very affordable legal services to the public. He believes that everyone should be able to afford quality legal services. He has twnety-one years of legal experience and has handled hundreds of divorces, bankruptcies, traffic violations, and criminal and civil cases. He is headquartered in central New Jersey. Affordability, accessibility, responsiveness and personal commitment is what every client receives.

Mr. Sliwinski can be contacted by phone at (732) 257-0708 or
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