Fault Divorce Should Be Implemented in New Jersey

Fault Divorce Should Be Implemented In New Jersey Divorce Cases

By: Joseph Guenther

        The question most frequently asked when couples are going through a divorce is “Is New Jersey a No-Fault state?” New Jersey allows “no-fault” divorces, but it is not a pure “no-fault” state. Most attorney’s will inform their clients that New Jersey Courts do not consider “fault” brought by one of the parties against the other, but divorcing couples in New Jersey also have the option also of seeking a fault-based divorce. (Guillen)

        Most states follow a Uniform Marriage & Divorce Act which is a comprehensive marriage and divorce act. It minimizes the number of prohibited marriages and includes the concept of no-fault divorce. In 1970, after extensive study and discussion, the Uniform Marriage and Divorce Act (“UMDA”) was approved by the National Conference of Commissioners on Uniform Laws. It was adopted as the sole ground for divorce “that the marriage is irretrievably broken.” Fault has largely been eliminated from the grounds for divorce, as have the defenses related to fault. The act has been adopted, in whole or in part by only seven states. These states include Arizona, Illinois, Kentucky, Minnesota, Missouri, Montana, and Washington. These states each adopted the act prior to 1978. Subsequently, Colorado adopted the act. This can serve as a means for uniformity across state lines, especially given the mobility of modern day families.

        We will now take a look at the difference between a “fault” and “no-fault” divorce. Divorce by consent is considered to be the basic kind of “no-fault” divorce. This type of “no-fault” divorce is where parties are not required to prove fault or grounds for divorce beyond a showing of irretrievable breakdown of marriage or irreconcilable differences. The majority of states, including New Jersey, have “no-fault” divorce statutes in one form or another.

        New Jersey has two “no-fault” grounds for divorce. No fault simply means that neither party is putting the blame or pointing the finger on the other party for causing the marriage to end. The first is irreconcilable differences; which basically means that the parties have their own differences and that they can no longer reconcile those differences which makes it impossible for them to continue to live together. The court does not need to know details with regards to those differences. The second ground is the 18 months separation. Please keep in mind that the court will require proof of living separate if this ground is chosen. In other words, all the parties have to prove to obtain a divorce in New Jersey is irreconcilable differences for six months or more that led to the breakdown of the marriage. Even if a divorce is a "no fault” divorce it does not necessarily mean that it will be an uncontested divorce. Irreconcilable differences can be anything from lack of communication, different goals and aspirations, arguing, fell out of love or actually anything which makes it impossible to continue. The New Jersey statute, N.J.S.A. 2A:34-2, reads “ (1) 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 and (2) Living separate and apart for 18 months and no reasonable prospect of reconciliation.”

        In response to criticism about the emphasis on grounds to obtain a divorce, often under spurious or specious claims, many states have moved to a “no-fault” system. Some statutes, like New York Statute N.Y. Dom. Rel. § 170, require that the parties live “separate and apart in different habitations” or that there be “voluntary separation from bed and board.” For example, Nick leaves Rachel to live with his mother. Nick goes to Rachel’s house daily, performs chores and attends social events with Rachel; however, they do not resume their sexual relationship. In this instance, the court held that the “separate and apart” standard was not met because of these continued associations. Accordingly, the suit for divorce was dismissed. This can be further explained by viewing case Ellam v. Ellam, 333 A.2d 577 (N.J.1975).

        California is another state that has “no-fault” divorce grounds which is similar to New Jersey’s “no-fault” divorce grounds. Initially, the “no-fault” divorce statute in California required “irreconcilable differences, which have caused the irremediable breakdown of the marriage.” Currently, California authorizes divorce on only two grounds. The first is what we mentioned in the previous sentence. The second is incurable insanity. These can be found in the California statute Cal. Fam. Code § 2310 (2004). In addition, irreconcilable difference are those grounds which are determined by the court to be substantial reasons for not continuing the marriage and which make it appear that the marriage should be dissolved. This can be found in the California statute Cal. Fam. Code § 2311 (2004).