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NEW LAW REGARDING DIVORCE
IN NEW JERSEY

On January 22, 2007, eleven years after it was first proposed, New Jersey finally provided for "irreconcilable differences" divorce. It is no longer necessary to make allegations of extreme cruelty (or even "extreme cruelty lite") in order to obtain a no fault divorce without living apart for 18 months.

The information below is now presented as historical information only.






Extreme Cruelty: A term of art

The origin of "extreme cruelty lite" in New Jersey: Historical Background

In order to obtain a divorce in New Jersey without living separately for 18 months, you will need to assert grounds for divorce. Our legislature has twice passed "irreconcilable differences" yet it has not been enacted into law. The primary opposition to the change is the Catholic Church, who have expressed a belief that enacting irreconcilable differences as grounds for divorce will make divorces more common. Accordingly, Gov. Christie Whitman once let the bill die (a "pocket veto") and once sent it back to the legislature for amendment ("a conditional veto") where it again died.

The experience of other states shows that divorce is not any more common where irreconcilable differences is available as a cause of action for divorce - it is less contentious and less acrimonious.

While I would stop short of saying that New Jersey has enacted a cause of action for irreconcilable differences via judicial fiat, it has come very close. Before the advent of "no fault divorce" 30 years ago, the Court was very concerned with why people wanted to terminate a dead marriage. Old case law (pre-1972) contains a standard holding that "the State is a party in spirit if not in name to every divorce, as the State has an interest in the preservation of marriages." For better or worse, the public policy of our State is now that dead marriages should be terminated. The presiding judges of Somerset, Burlington, Hudson, Middlesex, and Mercer counties have all stated that they will "never" deny a divorce to two consenting adults as a result of allegations being "too mild."

Accordingly, unless there is truly good cause to raise fault issues (e.g. domestic violence, child abuse, fault that might affect equitable distribution, adultery by a supported spouse when there is an alimony issue - in which case you shouldn't be using a pro se package in any case), the Court does not look into the grounds asserted. In sum, the Court doesn't care why you want to divorce - the Court wants to fairly divide the marital assets and debts, do what's best for the children, and have people move on with their lives. Over the past six years, I have been slowly pushing the envelope by putting less upsetting grounds for divorce in "extreme cruelty" complaints. I have used the sample grounds I supply without any problem in Mercer, Somerset, Hudson, Middlesex, and Burlington Counties. I finally "hit the limit" when a judge indicated that he had a problem with "defendant caused irreconcilable differences to arise between the parties" (alleging weak fault with no specific acts). In that case, the plaintiff had to amend his complaint. We amended to allege "(1) defendant stopped cooking for plaintiff and (2) defendant said a divorce would be a good idea" at which point the divorce went through. Note that I have used "defendant caused irreconcilable differences to arise between the parties" in other counties with no problem.

In an uncontested divorce where the parties simply want to go their own way, there is no reason and no legal necessity to put grounds in a complaint that will flare tempers and make what is usually an emotionally difficult situation any worse. The worst case scenario (and its a rarity) of putting "extreme cruelty lite" grounds is that you will have to amend your complaint. In the very unlikely event that this happens in your case, please contact me so I can update the package and inform future customers.

 

 

 

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The origin of "extreme cruelty lite" in New Jersey

 

 

 

 

 

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