Photo: Katrina Vitale

Katrina VItale, Esquire
105 N. Broad Street
Woodbury, NJ 08096
Phone: 856.845.5353
Fax: 856.845.5333

 

 

 

 

 

 

 

 

 

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Divorce


In New Jersey, divorce causes of action fall into two basic categories: fault based grounds for divorce and no-fault based grounds for divorce. 

There are two forms of no-fault divorce actions that predominate the family court docket: Separation and Irreconcilable Differences.  Separation is New Jersey's original no-fault ground for divorce. In order to establish this ground, both the husband and wife must have lived separately and in different houses for a period of at least eighteen (18) consecutive months. There must be no reasonable prospect of reconciliation. Today, however, parties are more commonly relying upon the most recently established ground for divorce: Irreconcilable Differences.   Adopted in 2006, this ground for divorce requires only a showing that irreconcilable differences exist between the parties and that these irreconcilable differences have lasted for at least six (6) months making it unreasonable to require the parties to cohabitate.

Fault based divorces are declining in number as couples are relying more and more on the less litigious proceedings such as Irreconcilable Differences.  However, the fault based grounds remain viable options under appropriate circumstances.

Extreme Cruelty:  Perhaps the most commonly asserted of fault based causes of action is the claim of extreme cruelty.  Extreme cruelty can be relied upon where the complainant can demonstrate any physical or mental cruelty which makes it improper or unreasonable to expect the parties to continue to cohabitate. N.J.S.A. 2A:34-2(c). The courts are rather liberal in determining what type of conduct may constitute extreme cruelty.

Adultery: Another common fault based cause of action is adultery.  In order to establish this cause of action, the complainant must show that the offending spouse had both the inclination and opportunity to commit personal intimate relations with any other person, irrespective of the specific sexual acts performed. The complaint must set forth the name of the person with whom the offending conduct was committed, a correspondent. If the name is unknown, then the complaint must set forth as much information as possible tending to describe the adulterer.

Desertion:  Desertion is the willful and continuous abandonment of a spouse by the other for a period of at least twelve (12) months.   To establish desertion, the complainant must demonstrate that the parties have ceased to cohabit as man and wife.  Desertion does not necessarily require a separation in separate households. Rather, desertion may be demonstrated by emotional abandonment that continues for a period of twelve (12) or more months.

Addiction: Dependence by one spouse on a narcotic or other controlled, dangerous substance, or habitual drunkenness of a spouse may give rise to a cause of action for divorce.  The complainant will need to present evidence that the addiction was persistent and substantial, and that it was continued for a period of at least twelve (12) months prior to filing the complaint.

Institutionalization: Institutionalization is another fault based ground for divorce.  This ground for divorce will necessarily require a showing that one spouse has been institutionalized for mental illness for a period of twelve (12) or more consecutive months subsequent to the marriage and preceding the filing of the complaint.

Imprisonment: If one spouse has been imprisoned for eighteen (18) or more months after the marriage and the parties have not resumed cohabitation thereafter, the other spouse may have a cause of action based upon the imprisonment.  Lack of malice is not a defense to this cause of action.  It is enough to show that the offending spouse was absent from the family unit for the stated time period.

Deviant Sexual Conduct:  Deviant Sexual Conduct is yet another fault based ground for divorce.  This ground for divorce requires a showing that the offending spouse has engaged in deviant sexual conduct without the consent of the complainant-spouse.


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