Your spouse left.
Maybe you've been gone from each other's lives for months. Maybe your spouse simply walked away from the marriage and hasn't come back.
Now you're wondering: "Can I file for divorce based on abandonment in New Jersey?"
Yes, under certain circumstances. New Jersey recognizes desertion as a legal ground for divorce.
What Is Desertion in a NJ Divorce?
Under New Jersey law, desertion generally requires a willful and continued desertion for at least 12 months. So if your spouse left last week, that doesn't mean you can immediately file for divorce based on desertion.
But here's the more important question: Do you need to file based on desertion at all?
In many cases, you don't.
You May Have a Simpler Option
New Jersey also allows you to file for divorce based on irreconcilable differences.
Unlike desertion, irreconcilable differences doesn't require you to prove that your spouse abandoned you for at least 12 months. That's why I usually don't recommend choosing a fault-based ground simply because you're angry about what your spouse did.
The ground you choose should make sense legally and strategically.
Will Abandonment Affect the Outcome of Your Divorce?
Simply proving desertion doesn't automatically mean you'll receive more property, pay less alimony, or otherwise "win" your divorce. But the circumstances surrounding your spouse's departure may matter for other reasons.
For example, if your spouse left the children with you and has had little or no involvement in their lives, the actual parenting history may be relevant when custody and parenting time are decided.
Similarly, financial conduct surrounding the separation may become relevant if one spouse stopped paying necessary expenses, moved money, or took other actions affecting the marital finances.
Those issues matter because of the underlying facts, not simply because you labeled the divorce "desertion."
What If Your Spouse Disappeared?
You can still potentially get divorced even if your spouse refuses to participate or you don't know where he or she is. But there are specific requirements for serving divorce papers and moving the case forward. Don't assume your spouse can prevent you from getting divorced simply by disappearing or refusing to cooperate.
Should You File for Divorce Based on Desertion?
Maybe. But the fact that your spouse abandoned you doesn't necessarily mean desertion is the best ground to use.
Before filing, understand the difference between what happened in your marriage and what you actually need to prove to get divorced.
In many New Jersey cases, filing based on irreconcilable differences may be the simpler approach. Your energy can then be focused on the issues that are more likely to affect your future: your children, finances, property, support, and settlement.
I created my free Divorce Smarter Course to help you understand those decisions before you file or agree to anything.
Until next time,
Steve