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What is the difference between Fault and No-Fault Divorce?

 

When filing for divorce, a spouse is presented with usually two options. The spouse must choose if they wish to have a fault grounds divorce, or no-fault grounds divorce.

No-Fault Grounds
This type of divorce does not particularly “blame” either spouse for the failure of the marriage. Instead, the no-fault grounds is usually based on “irreconcilable differences” or “irreparable breakdown of the marriage”, in accordance to the state laws. Basically, the spouses do not get along and the marriage is past the point of repair. There are many states who recognize no-fault grounds if the couple has been separated for a certain amount of time. Also, some states require the spouse who alludes to irreconcilable differences or an irretrievable breakdown of the marriage to be separated for a certain period of time BEFORE they can file for divorce.

When using this ground for divorce, neither spouses need to testify in court about why their marriage has failed. They must only prove that they are eligible for divorce by meeting residency requirements (a spouse must live in NJ for 1 year prior to divorce).

Fault Grounds
A spouse may choose to get a fault grounds divorce if they do not meet the requirements for a non-fault grounds divorce. Other reasons could include they may acquire some other benefit from a fault grounds divorce. The spouse filing for fault grounds must prove the fault in court. Common fault grounds for divorce include:

Cruel and Inhumane Treatment
This conduct includes extreme cohabitation threats that the other spouse’s physical or mental health is being endangered. Ongoing physical or emotional abuse may be proof of this ground

Adultery
In New Jersey, you do not have to meet the required one year residency prior to filing if you are filing under the grounds of adultery. It is a common fault-based divorce. This is proven with circumstantial evidence, such as a spouse and third party have become romantically involved and had the opportunity to commit adultery. Judges must decide whether or not adultery occurred by the totality of the circumstances. There are specific defenses to adultery, such as being guilty of the same conduct or forgiving the conduct and resuming sexual relations with the adulterous spouse.

Incarceration
In New Jersey, a spouse must be imprisonment for 18 or more consecutive months. The action is not commenced until after the spouse’s release, provided that the parties will not continue cohabitation following imprisonment.

Institutionalization
If a spouse is confined for a mental illness for 24 or more consecutive months, the other spouse may file under these grounds.

Substance Abuse
If one spouse has a habitation to drugs or alcohol for 12 or more consecutive months, the other spouse may file under these grounds.

Desertion
Abandonment occurs when one spouse voluntarily leaves the other with the intent to desert him or her. In New Jersey, 18 or more consecutive months must pass before filing under these grounds.

In some states, proving fault can be very difficult depending on reconciliation during the separated months. A judge must have a hard job of making sure the evidence against a spouse is authentic and reasonable. Also, proving fault can impact the financial outcome of a divorce. For example, if a judge finds that a spouse commit adultery and used marital assets to supplement a lover’s lifestyle, he or she may consider this fact when determining how to distribute property or how much alimony to award. In some states, a spouse is ineligible for alimony if he or she committed adultery or was proven to be abusive in the relationship.

Questions or comments? Drop a comment down below!

Divorce Settlements are Not Always ‘Forever’

If I lose my job and can no longer afford to pay alimony, am I able to go back to court and try to contest my divorce settlement?
You can absolutely file a motion to try to reopen your divorce case. The recession has played a huge role in Americans losing jobs. Many New Jersey-ians have suffered and consequently filed a motion for a child support and alimony reduction. Post-judgement motions have been pouring in ever since the recession began and has created an enormous problem and issue for the family court system and the people filing. The courts simply do not have enough judges to go around and hear all of the cases and the New Jersey-ians don’t have the financial means or job support to continue to pay their ex-wife/husband.

How do New Jersey courts generally hand motions to reduce alimony and/or child support?
Years ago, it was rare for a judge to consider granting motion(s) to reopen a divorce judgment. These motions were known as change of circumstance(s) applications. Settlements/judgements were considered to be written in stone and unable to ever be changed. Today, as America’s economy spirals downward, the family courts are increasingly inclined to grant more post-judgement motions. Judges now must consider the possibility of a person not being able to find a job or that his or her income has become sharply reduced. Therefore, more judges and family courts are accepting post-judgement motions and re-opening cases to reduce child support and/or alimony.

Do the family court judges have an increased empathy for motions to reduce alimony and/or child support?
Families, of all different incomes, are increasingly chasing for reduced child support and/or alimony. An experienced lawyer will encourage you to try to settle your affairs, as much as possible, without a judge. Court is an expensive route and very time consuming. If you can settle anything outside of court, do so!
To receive a financial reduction, the person seeking relief must file a motion and provide time for their former spouse to respond. The judge can now come to a decision based solely on the legal papers, with or without argument. If there are conflicting facts, the judge may hold a plenary hearing. This legal process can be time and money consuming. More often than not, there are several of these hearings.
In most cases, the success of a post-judgement motion depends on the reliability of the financial information that is disclosed. Furthermore, the family courts will place significant weight on the effort that the applicant has made to find comparable employment or to liquidate assets. There are no statistics on how many post-judgement reductions have been granted. However, there has been more of an increase in granting a reduction than in the past. Many judges sincerely believe that there needs to be a sharing of the pain by both sides.
The process to re-open a divorce case can be time, mind and money consuming for both parties involved. Some of the most difficult cases are from post-judgement cases. Today, many New Jersey-ians paying child support/alimony are trying to re-open their case in hopes to be granted a reduction, even though it has been years since their divorce has been finalized. And still, there is a lot of anger, frustration, and mistrust spewing from the parties!

Frequently Asked Questions about Divorce

Many people have a lot of questions when it comes to getting a divorce. Here are some answers to common questions frequently asked.

What are the grounds for divorce?
Both parties must apply for this relief and can be later converted into a divorce action. In New Jersey, there are both no-fault grounds and fault divorce grounds. Fault grounds include the following:
* Extreme mental and/or physical cruelty
* Adultery
* Desertion
* Constructive desertion
* Alcohol/drug habituation
* Imprisonment
* Institutionalized
* Deviant sexual behavior
* Irreconcilable Differences. (parties may be living together when file for divorce if they can prove irreconcilable differences existed for 6 months or more)
* Divorce from bed and board (later can be converted to a final judgment of divorce)

Can I afford a divorce? How much will it cost me?
There are many variables that can cause the cost of the divorce to go up or down. More complex divorces and uncooperative/poorly behaved opposing parties will cost more, as well as child support and custody. Simply look at your case. Do you think the opposing party will be likely to argue most issues? If so, this means more attorney fees.

Do I absolutely need an attorney?
You may research on the internet and rely on word of mouth for information, but chances are the info you receive will be unreliable, incomplete, or/and not the “full picture”. To be 100% sure you are informed of every protection New Jersey state law has to offer, it is wise to retain an attorney.

Does New Jersey grant divorces base on marital fault?
Yes. The grounds for fault divorce include: adultery, desertion, alcohol/drug habituation, imprisonment, and deviant sexual behavior.

Can I get alimony or will I have to provide maintenance to my spouse?
Depending on the case, alimony can be granted to the dependent spouse. New Jersey offers limited duration alimony, permanent and/or rehabilitative alimony, reimbursement alimony, or a combination. If a spouse is unable to get skills or training required to get a job and support themselves, they may be entitled to permanent alimony. Although, if a spouse IS able to obtain training or skills necessary to support themselves, he or she may be granted rehabilitative or reimbursement alimony.

Can I get an annulment?
Annulments are granted and available when the following can be proven:
* Either party has another spouse at the time of marriage
* The parties are blood related and closer than first cousins.
* Male spouse is impotent and the other spouse was unaware prior to marriage.
* Either party lacked the capacity to marry at the time of marriage due to: mental condition, intoxication, and/or drug use.
* Lack of mutual assent to the marriage as a result of duress or fraud.
* The demand for an annulment is made by a spouse who was under the age of 18 during time of marriage AND he/she did not ratify the marriage after turning 18.

When can I file for divorce?
You or the party must reside in New Jersey for at least one year prior to filing. The only exception to this requirement is if adultery is in the grounds for divorce.

When is my case going to be over?
The time length of each case can vary case-to-case. Variations that lengthen the case can include (but not limited to) custody, support, property division, etc. If there are many issues involved and the parties are not cooperative, the case can take some time.

Do I have to go to court?
Yes. There are limited circumstances where it is possible to have permission granted to appear via phone. This is usually granted when you are a certain amount of miles away or hardship exists. However, it is all decided by the court and/or the judge you are assigned.

Attempts to serve my spouse did not work.. What should I do?
You must motion the court for permission to serve by publication. In order to receive permission, you also must prove you put persistent effort in trying to locate the defendant.

At what point during the process is it OK for a spouse to remarry or start dating?
You can start dating at any appropriate time depending on your personal situation and preference. You can only remarry once the divorce is finalized and a final decree has been issued.

What if my spouse does not want the divorce?
You must attempt to prove you have been separated for 18 or more consecutive months or that one of the fault grounds exist.

Do some issues (child support, custody, alimony, and property) have to be decided before the divorce is finalized?
Generally no. Consider divorce, child support and custody to be three separate things. Child support and custody is independent from a divorce and can be modified long after a divorce. In many cases, it is advisable for alimony and property issues to be determined in agreement with the divorce.

How long do I have to live in New Jersey to obtain a divorce?
Typically, one year except when adultery is involved.

After filing for a divorce, am I able to move out of New Jersey?
Yes, as long as you were a resident prior to filing.

What forms do I need to file a divorce?
A Summons, Complaint in Divorce, Affidavit of Verification and Non-Collusion, Affidavit or Certification of Insurance Coverage, Confidential Litigant Information Sheet, and an Affidavit of Notification of Complementary Dispute Resolution Alternatives.

How and where is a divorce complaint filed?
In the appropriate county, the Complaint is filed with the clerk of court.

How do I serve the divorce complaint to my spouse?
You can serve your spouse personally via the sheriff with both the Summons and Complaint. If this is unsuccessful, the plaintiff’s attorney or any uninvolved party (over the age of 18) may attempt service. If personal service is not successful after persistent attempts, service certified by mail is permissible.

How is a divorce granted? Will I have to go to court?
New Jersey requires the moving party to go to court in an uncontested divorce to testify on the record regarding the information presented in their complaint. If the defendant has filed an answer, he/she will also have to appear in court.

How do I prove fault for a divorce?
You will provide all present evidence and possible witnesses if a hearing on the grounds alleged for divorce is held.

Can a couple become legally married by living together as man and wife under the states laws (common law marriage)?
New Jersey does not recognize common law marriage.
Hope this can help resolve some confusion you might have. Feel free to leave comments or questions below!