New Jersey Includes Irreconcilable Differences as Grounds for Divorce
To the relief of many and the consternation of a few, New Jersey law now includes "irreconcilable differences" as a ground for divorce. The bill, just signed into law by Governor Corzine, means that a Complaint for Divorce can assert the existence of irreconcilable differences which have caused a breakdown of the marriage for six or more months.
The legal impact is that persons may now file for divorce without having to allege marital fault against their spouse or await the expiration of eighteen months separation. The law will remove some but not all of the animosity in divorce since the great majority of cases are more vigorously contested with regard to such issues as custody, parenting time, alimony, child support and division of marital assets. Nonetheless, lawyers welcome the new law since we know that except in rare instances where egregious fault may be considered by the court, marital fault is not a factor in the financial aspects of divorce. Even in custody cases, the fact that one’s spouse has committed marital fault is not determinative. That person may at the same time have no parental faults, although there are situations where underlying problems such as anger may be important.
Finally, the new law does not replace other grounds for divorce such as adultery, desertion or extreme cruelty which still have their rightful place. The important thing is that each case is fact-sensitive. As a matrimonial attorney for thirty years, my advice to anyone considering divorce is to learn not only your legal rights but responsibilities, retain a specialized lawyer, discount advice from family and friends no matter how well-intentioned and, once armed with knowledge and guidance, prioritize your issues.
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49 Replies to “New Jersey Includes Irreconcilable Differences as Grounds for Divorce”
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Can you interpret a “breakdown in marriage” for me? Does this mean a physical separation? I’m reading conflicting reports.
Thanks.
Kristen,
A physical separation is not necessary.
John Eory
When exactly is separation considered to begin, do you have to have a legal separation agreement?
Lori,
The 18 month separation begins when two spouses no longer share the same residence. Separate rooms do not count. Attempted reconciliations (such as a weekend together) will not break the chain.
There is no legal separation in New Jersey. Persons are considered legally married until they are divorced, although the law is that once a person files for divorce the marital “partnership” is over for various legal purposes.
I hope this is helpful.
John Eory
Does the irreconcilable differences apply retroactively? For instance, what if I have been separated for ten months as of January 20, 2007. Do I have to wait 6 months?
Mr. Eory,
If no separation is necessary, how does one prove a “break down in marriage?”
Layla,
No separation requirment exists. You can allege irreconcilable differences now.
John Eory
My soon to be ex and I are both military and we have everything divided and have no issues. We simply want a divorce with my name changing to include my maiden name attached to the end. We just met the 18 month requirement but regardless we would like to know if we need to include lawyers and if not what process do we need to follow.
Thanks
Shevawn
this new law means that we can file for divorce even if we still live @ the same residence. we both agree to it but needed to wait 18 months. how would this benefit us?
My husband and I just signed a separation agreement. We still live in the same house, but I plan to move out in 2 months. Can we get a divorce based on that new law now or do we actually have to live in different locations for 6 months before we can do it?
Shevawn,
Thanks for your inquiry. Assuming no other issues than the divorce and former name, you could try to do it yourself. The Rules of Court still apply, however, so rather than get things wrong you might want to hire an attorney and ask your soon-to-be ex to share the cost. You can call your local county Bar Association which maintains a list of lawyers with whom you could consult on a relatively inexpensive basis. Best of luck.
John Eory
Liz,
Thanks for your inquiry. I’m not sure I understand your question but here’s the deal–irreconcilable differences has no separation requirement, 18 months or otherwise. The new divorce ground looks backward six months from the day a person files for divorce whether or not the parties are separated. Hope this helps.
John Eory
Katya,
You do not have wait out the 6 months before filing. The 6 months is backward-looking; in other words, if you allege the existence of irreconcilable differences for the past 6 or more months you can proceed. Best of luck.
John Eory
My husband left our home after 29 years of marriage in July 2006. He wants to come into our home & take his possessions
only if I’m not in the house at the time. I thought that because this is no longer his residence, I can request that he can only be in our house when I am there. What is the law in NJ for this?
I would like to know if there is any type of guide to the amount of support that must be given to a spouse (w/ no children involved) – is it based on salary inequality (say, 3 to 1), and will the length of time vary (both work)?
Thank you in advance, Vince
Kristen,
Since the law is new there have been no reported decisions on the question you ask; however, my understanding is that one simply asserts irreconcilable differences for six or more months in the Complaint for Divorce. No specified grievances are necessary. The new law is essentially designed as an alternative to an 18 month separation, as opposed to the traditional fault-based grounds such as adultery, desertion and extreme cruelty.
John Eory
Ok, my wife and I have been separated for 2 1/2 months now, and we have been arguing for at least a year. I want to file a divorce based on the new law. What if she contests? How could I prove the problems?
Thanks!
john – this thread has been very informative.
what does nj law say about post seperation, pre-divorce relationships. i met a man, who has been seperated for a year (living seperate residences), and his lawyer is recommending that he not see anyone now until his proceedings are over. is this just “best practice”? it seems that our relationship would have no impact on the distriubution of assets in the settlement.
Is that correct? What are the consequences of this relationship?
Thank you so much for your advice.
S
Vince,
John Eory
Patti,
If the property is in joint names, which I assume it is, he can legally enter it despite the separation. Your best bet is to have a lawyer who can make arrangements with his lawyer so that there’s no problem. Meanwhile, I’d take photos or video the contents for future reference, if necessary.
John Eory
Anonymous,
Thanks for your inquiry. Your question is a good one since the law is so new. From what I’ve been told, if a person testifies under oath in accordance with elements of the statute ( irreconcilable differences/ for more than six months/ no reasonable prospect of reconciliation), that’s it. No other testimony is needed and no defenses exist.
Don’t forget, however, that this only results in terminating the marriage so all other issues involving children, support and division of property remain to either be settled or determined by the court.
John Eory
Stephanie – Thanks for your inquiry. While I would generally agree with regard to equitable distribution I am hesitant to give an further answer since the lawyer obviously knows more about the case than me. Who knows–perhaps it will make the case harder to settle? Ask the lawyer for specific reasons and follow his or her advice. Good luck.
John Eory
My husband and I have agreed to get a divorce. He has agreed to keep his credit card debts and I will keep mine. He will keep his car and I will keep mine as well. The only issue we are trying to agree on is wether we will sell our home or draw up an agreement as to holding on to it for a little while. We are considering this as the area where the home is located is being developed and it will be worth a lot more in a couple of years. So my questions are.. can we ourselves file the irreconsilable difference divorce papers? and can we ourselves draw up an agreement as to the mortgage payments and maintainance of the property and just have the agreement notirized?
Econ,
From your comments it sounds like the marriage is over. If one of you has been living in NJ for a year, you can file for divorce. The separation-based ground for divorce requires 18 months of actual separation which would not be up until September. NJ just enacted a new ground for divorce based on irreconcilable differences for a minimum of 6 months which would be available if you wanted to proceed.
As far as how long a divorce might take, it depends on whether your husband would contest it or not. Don’t forget that the ground for divorce does not deal with any other issues, such as alimony and division of marital assets.
My suggestion is that you meet with an attorney for a consultation and then determine the best way to go.
John Eory
My husband and I are separted – House is in both are names. What would be the best advise as far as common ground, What are the guidlelines? Can I buy him out base on the equity in the house or do I need to pay him 50% of the house value.
Eliana,
Thanks for your inquiry. One of you has to file for divorce as the Plaintiff. The other person is the Defendant. Two persons can’t file the same Complaint. You (or your husband) could do so on the new irreconcilable differences ground as long as you or he knows what’s involved in terms of the Complaint contents and required attachments, filing fees, summons, default,, etc, not to mention the eventual Judgment of Divorce. I don’t recommend it unless you really know what you’re doing. That’s what lawyers are for. Since you’re thinking about an Agreement too, my suggestion is that you consult with an attorney to better understand the process and to be sure you know your legal rights and responsibilities in terms of the home and other issues which may arise.
John Eory
Krista,
Thanks for your inquiry. I will assume that this is in connection with a divorce. If so, the general rule is that the person buying out the other must refinance the mortgage in his or her name. This is because the other party would still be on the mortgage even though he or she has transferred title in exchange for the buyout. This is something I would insist on were I representing the person being bought out.
Second, equity value governs, defined as fair market value less outstanding mortgage balance(s). Note that I have not said 50% of the equity value is automatic. If someone put more money into the purchase price or if he or she is waiving something such as other assets or alimony, the values should be factored into the buyout price.
My advice is not to do this on your own but through an attorney knowledgeable in family law. I hope this is helpful.
John Eory
My spouse and I have recently decided mutually and amicably to divorce. We have been living seperate lives for approx. 3 years, and my husband has been staying elsewhere with friends for most of it. There is no legal/written seperation. The house/and deed is in his name and we do not have many other assets. For those we do have we are in agreement on what we want to split. We want to make this situation as less stressful and less costly as possible. We do not have alot of money and want to avoid attorneys. Would we qualify for this new law?
Heather,
Thanks for your inquiry. Yes, the new law is available to whichever one of you chooses to file. May I suggest that you and your husband consider divorce mediation. There are any number of lawyers who list themselves as divorce mediators who could assist you both on a shared cost basis.
You mentioned one thing that caught my attention; that the house is in your husband’s name. If it was acquired during the marriage other than by gift or inheritance, it is a marital asset regardless of whose name is on the deed and mortgage. I can’t give you any specific legal advice but it might be wise to consult with an divorce attorney. Best of luck.
John Eory
Can a judge deny my husband weekend visitations with his kids from a previous marriage because he doesn’t have off every weekend?
Crystal,
The goal of the law is to encourage parenting time ( the new term for visitation). As long as your husband has a sound parenting time plan, a court must give it weight. I’m not sure why a Judge would deny parenting time even if one’s schedule is different form normal, such as the result of work, for example. At the same time what courts want is continuity, not confusion. The farther out your husband can demonstrate his parenting time proposal the better. Good luck.
John:
My husband and I have only been married since February 2006. He moved out February 15, 2007, however, he has been sleeping over his mother’s off and on since December 2006. Do I have to be separated for a certain amount of time before I can file Irreconcilable Differences? We have no children, no property, no equitable distribution whatsoever. Can I have him sign an Affidavit in lieu of filing an Answer? Thanks for your help.
Rose
Rose,
Thank you for your inquiry. The answer to your first question is “no”. There is no separation requirement. You do have to state that the irreconcilable differences have existed for more than six months and that there is no reasonable prospect of a reconciliation.
Rather than get into the technical language of what such an affidavit must state, my suggestion that you simply wait out the required 35 days after he is served with the Complaint and then request a default. Good luck.
I am a resident of NJ and just recently filed for Divorce using “Irreconcilable Differences”.
How long can the Divorce take? Six months? One year?…
There is only one issue, our house.
We are both on the deed..but I am the only name on the mortgage.
He will not leave the residence. I know I will have to sell.
If the house is worth 380K and the mortgage is still around 300K..
Will I have to give him 190K or about 40K?
Thank You
Thanks for your inquiry. As for how long the case will take, it depends on (a) whether your husband contests the divorce and (b) the county in which you filed. If uncontested, the time period is obviously less than if issues are in dispute.
In the event of a sale, the net proceeds would most likely be divided 50/50 after payment of the realtor’s commission, other closing costs and payoff of the mortgage. Assuming the house is worth $380.000 and the realtor’s commission is 5%, the balance is $361,000 less the $300,000=$61,000/2= $30,500 apiece.
Shawn,
Thanks for your inquiry. I’m not sure what you mean by option 1 “online divorce. If you’re referring to getting forms and using them, I wouldn’t recommend it if there is any property division. At best, the use of this option is for very simple cases and even then it can be a quagmire of adhering to all the procedural rules, deadline dates, correct papers, etc.
A divorce mediator is an option although you and your wife should have independent attorneys to consult with during the process and certainly before a final Agreement is signed. If you go this route, the mediator should be a family law attorney, not a mental health professional.
Using two lawyers is the alternative to mediation. If the parties and attorneys are focused on resolving the case, this is a good option. Otherwise, it can get costly although unproductive mediation and having to restart the process through counsel can be no less so.
Hello John
My question is my husband and i will be married (1) year this month. We are 58 & 62 years old. We both owned our own homes prior to our marriage and this is the biggest problem,”letting go” and moving on to a home of our own together.My husband decided to stay at “my” home in December and rent or sell his, he has not made a decision yet and is living back at “his” home. He now feels mortgage rates are too high now after we have been looking at homes for a year or more.He has changed his mind.He has not been with me only for a day or (2) on a weekly basis until now. My major concernn in our marriageis that he has not upfront with me in placing my name on his insurance and 401K plan at his job, espeicially since he was told that any assets owned prior to the marriage he does not have to share; well he hasn’t chosen to incllude me , this decision has caused me to not trust him. I on the other hand have included him on my pension and health insurance etc.
We have no bills together, no property together ..he has been non existtant for quite a few months now calling maybe once a week to check in maybe??I have been depreessed and embarraased that I have gotten myself into a mess.I am considering the “irreconsiable divorce procedure. Although I do love him he is acting much different than I have know him to be in our six year relationship prior to our marriage.He has not financially suppoorted our household since our marriage as we have been living separately. Is being married less than a year grounds for irreconciable divorce or is an annulment the same.
I truly feel he loves me but he has a problem with sharing and I do not want to continue to live in depression, hurt and in pain over this situation. I did not see any of this in the 6 years we have been in a relationship.
Please respond if possible.
Syvetta,
Thanks for your inquiry. Although I sometimes suggest pursuing other options such as marriage counseling, your description of events leads me to recommend that you extricate yourself from the marriage before matters get worse. You need to straighten out the finances and the pension. The short length of your marriage is not a bar to using irreconcilable differences as the ground for divorce which is how I suggest you proceed.
I filed for divorce on the grounds of Irreconcilable Differences in NJ. My wife counter claimed with adultery. We have no children and its lileky we will settle finances. Can my wife push for a hearing or trial contesting the grounds of divorce? Do the grounds have to be the same for divorce to be granted?
Peter,
The Judge can grant what is known as a Dual Judgment of Divorce if both parties insist upon proceeding on their respective cause of action. Oftentimes when there is an agreement as to all other issues, one party will dismiss his or her cause of action to expedite the hearing.
There are very different burdens of proof involved in the two causes of action you mention with the far greater burden falling on the person seeking to prove adultery. Divorce law is quite specific as to the necessary elements of proof in adultery cases; it can’t simply be a “Jane Doe” deal. Your cause of action is indefensible as long as you testify that the irreconcilable differences have existed for more than six months and that no reasonable prospect of reconciling your marriage exists.
If you wish any further advice, please call my assistant, Sheila Morris, at (609) 219-7412. She can set up an appointment and discuss the fee.
Hi:
My husband (we were married in Barbados in Sept 2006) has served me with papers dated late April 2007 in Bergen County.
My husband moved to Bermuda in two weeks after we were married and has a stake in a business & other stock. He has a Bermuda drivers license. He is using his ex-wife’s address to file, claiming he has lived there in NJ for a year. I have copies of his NY State License which he got in Aug 06. I have alimony vouchers and all sorts of mail that still come to my address in NY.
Don’t you have to live in NJ for a year to file the irreconcilable differences? I’d like to contest but on what grounds? Thanks.
Karen,
Thanks for your inquiry. You are correct that NJ has a one year residency requirement. In fact, the correct term is “bona fide residency” which involves an intention to reside in NJ and is evidenced by such things as driver’s licenses, bank accounts, voter registration, etc.
If your husband does not have bona fide residency in NJ, his case cannot proceed. It will be up to you to challenge it, however, since the courts do not do so automatically. If he is determined to be a bona fide resident, the second question is whether he has a valid ground for divorce based on irreconcilable differences. The chances are he does since all the law requires is for the person to assert that there have been irreconcilable differences for six months or more and that no reasonable prospect of reconciliation exists. It is in effect a no-fault ground for divorce without a separation requirement.
Hope this helps. Good luck
Mr.Eory,
My wife and I are at the end of our ropes and it is going to be a mutually separation. In reading the second paragraph, it talked underlying problems such as anger. Although we are going separate ways, I still care about my wife. Do you have any recommendations on how I can suggest that she address these issues.
I believe it can change her life. What do you think?
John,
Thanks for your inquiry. Based on what you described, it sounds like the key to change is willing participation in an anger management program with a qualified psychologist. This requires the initial acknowledgment of a problem and the willpower to stay the course of treatment.
I don’t know where you live but if you contact a good divorce lawyer in your area, he or she will know the names of competent psychologists.
This is not to say that other forms of treatment are not appropriate since anger issues may be a symptom of underlying psychological or even medical problems which need to be addressed.
Finally, don’t forget that sometimes anger is not be deep-rooted but rather “situational”, such as due to the stress of a bad marriage, workplace difficulties, financial problems, etc. As you can imagine, I have seen good people at their worst in some divorce cases. Good luck.
John
Question
Civil unions were recently legalized in the state of NJ and I am confused about how this may affect me.
I had a civil union performed in VT in 2001, however I have been separated from my partner for over 2 yrs. I am trying to figure out how this all affects me. I do not want my past relationship to haunt me.
1. Can I dissolve my VT civil union in NJ and should I? We did not register our civil union in NJ, however NJ recognizes VT civil unions without registering within the state.
2.If I should dissolve my civil union, then how do I go about doing so? We have already divided everything up and simply want to sign on the dotted line and move on. We have already split everything up. Can the judge void all of our decisions and decide what either of us deserve, or does OUR DECISIONS matter? It has been years now and I just want to make sure all loose ends are tightened.
3. Do we need a lawyer? If so, can we have one lawyer instead of two?
Any advice you could offer would be greatly appreciated. This is all so confusing.
MG
last saturday my husband met me in front of my home and served me with a summons with notice. i reside in the bronx, ny. i would like to know is that legal and if service was improper what can i do. second the notice sais i had to serve a notice of appearance within 20 days do i need an attorney to serve this document. thirdly, he is using abandonment as grounds for divorce however that is not true. i want the divorce but i am not agreeing to the reason he gave when it is a lie. we got married in 1977 and i left him in 1979 because he stabbed me in my face and i had him arrested. we have been apart since then. our son is 30 years old and i had 3 other children(not His) and he had 1 by another women too. during the whole time i received welfare and i never asked him for a dime. he never offered. we never got a court separation i left because of abuse. now he tells me he wants to leave america to go to barbados to help a friend who opened a restaurant and he has no money but i donot beleive him. . yes he worked driving yellow cab and he also worked for transit authority for six years and i never seen no money when he filed taxes. i am disable and receive ssi since 1998. please help me i am confused. as i said i am not contesting the divorce just the grounds for which he is using.
Alberta,
I cannot tell whether the divorce complaint is NY or NJ. Since I am not an NY lawyer, I am unable to answer your questions regarding proper service and grounds for divorce in NY. If NJ,personal service by your Husband is not valid and neither is the 20 days (35 in NJ).
If it is a NY case, do not hesitate to contact NY counsel immediately.
Mary,
Thanks for your inquiry. You are correct that NJ recognizes VT civil unions; therefore, assuming that you have been a bona fide resident of NJ for more than one year, you can file in for dissolution in NJ. You will need a written agreement memorializing the terms of settlement. Your former partner, while entitled to independent legal representation, can waive it knowingly and voluntarily. In other words, you cannot both use the same lawyer. The grounds for dissolution would be irreconcilable differences or 18 month separation.
If you are interested in proceeding, please call my secretary, Sheila Morris, to set up an initial consultation. Sheila’ number is (609) 219-7412.The fee is $300 for the consultation at which we can explore all legal and procedural issues and options, as well as the legal fees involved.