by Jeff J Horn, Esquire
What are the steps in a No-Fault Divorce?
New Jersey has two distinct grounds for no-fault divorce. Eighteen (18) month separation, requires that the couple live under separate roofs for (18) consecutive months. Living under the same roof but separated inside the house is not grounds for a no-fault divorce. The most common no fault divorce grounds is irreconcilable differences.
i.Irreconcilable differences which have caused the breakdown of the marriage for a period of six months and which make it appear that the marriage should be dissolved and that there is no reasonable prospect of reconciliation.
In your no-fault divorce complaint, you simply State as the statute requires. problems have Arisen during the marriage and those problems persisted for at least 6 months. Those problems are irreconcilable. You will state that in your divorce complaint. At your final hearing you will testify accordingly.
Professional tip: Always include a count for Irreconcilable Differences in your divorce complaint. Utilize fault grounds for leverage. Some people do not want a divorce on the grounds of adultery. Fight for what you want – your best deal. You may be able to trade assets for dismissal of a harmful fault-based divorce claim.
With an attorney or pro se, you will pursue the same no fault divorce grounds. A link to the New Jersey courts divorce self-help resources follows:
What if my No-Fault Divorce becomes contested?
No-fault divorce does not mean there are no important issues. No-fault divorce deals with the grounds for divorce only.
Important issues including:
- Child Custody – joint legal, primary caretaker, secondary caretaker
- Child support – child support guidelines, collection of child support
- Alimony – open durational alimony, limited duration, rehabilitative
- Marital home – an asset and a place to raise your family
- Equitable Distribution – big topic – allocating assets and
- Dividing a business – valuation, future ownership, equity
- Investment accounts – division, taxes, fees
- Retirement assets – qualified domestic relations order, early withdrawal penalty
- Legal and professional fees – who will fund litigation
All of these issues will be addressed as part of your no-fault divorce. No-fault does not mean no issues.
Does a no-fault divorce mean there are no children?
Absolutely not. you and your spouse can agree to divorce. the children’s best interests are always the highest priority for the court. in over 20 years has a divorce and family lawyer, I observe that most people have their children’s best interests at. even after divorce, both of you are still the children’s parents.
Seeking a divorce on no-fault grounds is best for the children.
The children do not need to be part of or hear about a nasty divorce over adultery or habitual drunkenness. Children of the marriage should not be rolled into the dispute. a child may have something to say about where he or she lives primarily. no child should be asked to choose between parents.
Even in a no-fault divorce, children can be harmed. Above all, it is the job of the parents to do no harm. Do not believe in false narratives.
Family Court judges rarely utilize marital fault to justify a child custody determination. Even if your spouse has been horrible to you, it does not mean that the spouse will never see the children or share joint legal custody.
Courts do not care about the “why” you are getting divorced.
No-fault Divorce Alimony
Commonly, people tell me that they do not want to pay alimony because the other party wants to initiate divorce. Initiation of divorce has nothing to do with alimony. Painfully, even if your spouse has an affair, there is no bar from claiming alimony.
Statutory factors and case law are the foundation for alimony awards. Fault or no-fault. Alimony is mostly about income, expenses in the marital lifestyle. Seeking a no-fault divorce does not borrow you from pursuing a fair claim for alimony. Conversely, pursuing a divorce on fault-based grounds will not automatically save you from paying alimony.
Financial issues in a No-Fault Divorce
All of the financial issues raised in a contested divorce can be raised in a no-fault divorce. You do not give up your right to claim assets because you seek and no fault divorce. Would it make sense that you lose your interest in your home if you saw a no-fault divorce? Of course not.
The court system encourages everyone to work on settling the case. “Settlement agreements, if found to be fair and just, are specifically enforceable in equity.” Konzelman v. Konzelman 158 N.J. 185 (1999).
Bottom line, no fault, settled or uncontested cases are the lifeblood of the divorce court system. If everyone wanted a trial, nothing would ever get done in divorce court.
What are the numbers?
The facts are clear. There are thirty thousand (30,0000 divorces in New Jersey every year. There are approximately 300 trials. Cases settle mid-trial. Hence, more than 300 divorce trials are started. However, only 300 cases are trying to conclusion. This means there is a 1% chance your case will be tried to conclude. It also means that the other 99% of the cases will be dismissed or will be considered uncontested.
Uncontested divorces are almost always settled on no fault, irreconcilable differences grounds. Considering fault-based divorce grounds?
Remember, only 1% of the cases ever get to the judge.
How many of those 1% are on the basis of fault – very few. The judge rules on contested cases. However, contested does not necessarily mean fault-based.
If you feel deeply aggrieved by your marriage, include a fault claim in your divorce. Also, include A a count for irreconcilable differences. Utilize mental health professionals to work through your divorce papers. Get into good habits. Good habits will serve you way better than achieving revenge through a fault-based divorce.