New Jersey recognizes nine legal grounds for divorce. Eight are generally considered fault-based grounds. The ninth, irreconcilable differences, allows you to end a marriage without legally blaming either spouse for its breakdown.
Most of my clients today file based on irreconcilable differences.
That sometimes surprises people, particularly when adultery, substance abuse, cruelty, or other serious conduct contributed to the end of the marriage. They understandably want to know: If my spouse did something wrong, shouldn't I say so in the divorce?
You can. But whether you should is a different question.
The ground you choose to file for divorce usually does not determine who gets custody, how much alimony is paid, or how your property is divided. Before choosing a fault-based ground, it helps to understand what each option actually accomplishes.
Irreconcilable differences is the ground used in most New Jersey divorces today. Generally, you need to state that irreconcilable differences have existed for at least six months, caused the breakdown of the marriage, and that there is no reasonable prospect of reconciliation.
You do not need to list everything your spouse did wrong or describe every argument that led you here. Since this option became available in New Jersey in 2007, it has largely replaced extreme cruelty as the standard way to begin a divorce.
Extreme cruelty involves physical or mental cruelty that endangers a spouse's safety or health or makes it unreasonable to expect that spouse to continue living with the other.
Before irreconcilable differences became available, extreme cruelty was commonly used to establish grounds for divorce. That often meant putting a list of marital grievances into the divorce complaint. Some involved genuinely serious conduct. Others amounted to a written history of everything one spouse disliked about the other.
The ground still exists, but starting a case by documenting your spouse's alleged cruelty can increase hostility before you have even begun negotiating.
New Jersey also allows divorce when spouses have lived separate and apart in different homes for at least 18 consecutive months with no reasonable prospect of reconciliation.
This ground is much less useful than it once was because irreconcilable differences generally allows spouses to file without first spending 18 months living apart.
Adultery remains a legal ground for divorce. If you use it, the complaint generally needs enough information to support the allegation, which can make the beginning of the case considerably more personal.
What surprises many people is that proving adultery usually does not mean you receive more alimony, more property, or a better custody arrangement. An affair may become legally significant when marital money was spent on it or when related conduct affected the children, but adultery itself is generally not a mechanism for punishing an unfaithful spouse.
Desertion may provide grounds for divorce when one spouse willfully and continuously deserts the other for at least 12 months. New Jersey law also recognizes circumstances in which spouses have ceased living together as husband and wife for the required period even though they remain under the same roof.
In decades of practicing New Jersey divorce law, I have rarely seen a practical reason to choose this ground today.
A divorce may also be based on voluntarily induced addiction to a narcotic drug or habitual drunkenness for at least 12 consecutive months after the marriage and before the divorce complaint is filed.
The underlying substance abuse can be far more important than the ground for divorce itself. If alcohol or drug use affects a parent's judgment, stability, or ability to safely care for the children, for example, those facts may become relevant to custody and parenting time regardless of which ground appears on the divorce complaint.
This ground may apply when a spouse has been institutionalized for mental illness for at least 24 consecutive months after the marriage and before the divorce action begins. It is another ground that is rarely used in modern New Jersey divorce cases.
A divorce may be based on a spouse's imprisonment for at least 18 consecutive months after the marriage. Additional requirements can apply if the divorce action is not started until after the spouse has been released.
New Jersey also recognizes voluntarily induced deviant sexual conduct performed without the filing spouse's consent as a ground for divorce.
Because of the highly personal nature of this allegation, I would strongly recommend discussing the circumstances with your attorney before deciding whether there is any benefit to putting it into a divorce complaint.
This is the more important question.
People sometimes want to use a fault-based ground because they believe the court needs to know who caused the marriage to end. Emotionally, I understand that. Legally, it often accomplishes much less than people expect.
Issues such as alimony, equitable distribution, custody, and parenting time are decided according to their own legal standards. Simply establishing that your spouse committed adultery, deserted the marriage, or engaged in some other marital misconduct does not ordinarily mean you receive a better financial settlement or custody arrangement.
That does not mean your spouse's conduct is irrelevant.
If the conduct affected your children, depleted marital assets, created a safety issue, involved domestic violence, or otherwise relates directly to something the court must decide, those facts can still be presented when they matter.
You do not need a fault-based ground for divorce simply to preserve your ability to tell the court about relevant behavior.
For most people, irreconcilable differences accomplishes what the ground for divorce actually needs to accomplish: it allows you to get divorced.
It does that without beginning the case with allegations that may immediately put the other spouse on the defensive.
Meanwhile, if there are facts involving domestic violence, substance abuse, hidden or wasted assets, child safety, financial misconduct, or parenting problems, those issues can still be addressed where they actually matter.
Choosing irreconcilable differences does not mean saying that nothing bad happened during your marriage. It means separating the reason you are legally ending the marriage from the issues the court may actually need to decide.
Sometimes there is a legitimate reason to use another ground. But before doing so, I would ask yourself a very practical question: "What will I gain by putting this allegation in my divorce complaint?"
If there is a meaningful legal reason, that is worth discussing with your attorney. If the only goal is to make sure your spouse knows you blame them, you may be starting an already difficult process with an unnecessary fight.
There is no single ground that is appropriate for every New Jersey divorce. Your circumstances matter, and there may be cases where a fault-based ground serves a legitimate purpose. But for most people, irreconcilable differences is the simpler and less inflammatory way to begin the case.
The issues that will shape your future usually come later: your children, your finances, your home, support, property division, and the terms of your eventual settlement or judgment. Those are the places where I would rather see you spend your time and resources.
If you are considering divorce and want to understand those issues before making major decisions, my free Divorce Smarter Course explains the New Jersey divorce process in plain English.
Until next time,
Steve