The New Jersey Divorce Complaint and Marital Fault – Why You May Want To Exercise Discretion

The Purpose of the Divorce Complaint

The divorce complaint is the initial document filed and served in the divorce process. It is filed with the court and then served on your spouse. The primary purpose of the complaint is to let the defendant (your spouse) and the court know why you want the divorce, i.e., what grounds or basis you have for the divorce.

Traditionally there were 9 bases for filing for divorce in New Jersey:

1.         Adultery

2.         Willful and Continued Desertion for 12 or more months

3.         Extreme Cruelty

4.         18 Months Separation

5.         Desertion

6.         Voluntarily induced addiction or habituation to any narcotic drug as defined in the New Jersey Controlled Dangerous Substances Act. or habitual drunkenness for a period of 12 or more consecutive months

7.         Institutionalization for mental illness for a period of 24 or more consecutive months subsequent to marriage.

8.         Imprisonment of the defendant for 18 or more consecutive months

9.         Deviant sexual conduct voluntarily performed by the defendant without the consent of the plaintiff;

Adultery, desertion, extreme cruelty, desertion, drug or alcohol addiction, imprisonment and deviant sexual conduct are all “fault” grounds, meaning they allege that your spouse did something wrong. Prior to 2007 the only no-fault ground was 18 months separation. Proving 18 months separation could be difficult and often times led to hardship for couples who wanted to end their relationship as quickly as possible without having to live separate and apart for 18 months before they could file for divorce.

In January 2007 former Governor John Corzine signed a law adding a new basis for filing a divorce complaint in New Jersey. The new basis is called “irreconcilable differences”. Unlike the previous fault grounds listed above, and the one no-fault ground (18 months separation), irreconcilable differences is very straight-forward to prove. Basically, all that has to be proven is that you and your spouse have had “irreconcilable differences”, which means that you and your spouse “just can’t get along”.

So what is the best strategy for your case? Should you file under irreconcilable differences or list marital fault grounds in your divorce complaint?

Uncontested Divorce

If you are filing for an uncontested divorce it makes no sense to file using a fault ground. Since the divorce is uncontested your primary goal is to have your spouse sign the divorce documents as quickly as possible. If he or she is embarrassed or feels that they have been exposed in the divorce complaint they will not be as quick to settle your differences and get the divorce finalized on an uncontested basis. In uncontested cases it is almost always better to file using irreconcilable differences rather than alleging fault grounds.

Contested Divorce

Similarly, in most contested cases listing your spouse’s shortcomings and marital violations in the divorce complaint may not be the best strategy. New Jersey is a no-fault state when it comes to determining alimony and equitable distribution, which means that New Jersey judges do not and cannot take fault into account in rendering their decision on financial issues. So with regard to financial issues there is no plus to listing your spouse’s marital fault in the divorce complaint.

As well, by listing your spouse’s worst faults in the complaint you are almost guaranteeing an equally hostile counterclaim for divorce, in which your spouse lists his or her catalogue of what they think are your worst marital offenses. In most cases starting a contested divorce with a point-counterpoint airing of dirty laundry can set the stage for a more hostile, more adversarial, and usually more costly divorce process than is necessary.

With that being said there are certain cases in which an argument can be made for listing your spouse’s marital faults in the divorce complaint. For instance, if you anticipate that your spouse is going to fight you to be primary custodian of your children, and your spouse has engaged in serious misconduct which you deem not to be in your children’s best interests (drug use, alcohol abuse, driving while intoxicated, etc.), it may be worth listing his or her marital fault in the divorce complaint.

Ultimately, whether you allege fault grounds or no-fault grounds in your divorce complaint is your decision to make, after thinking through and discussing the pros and cons with your lawyer. If you would like to discuss this issue, or any other divorce-related issues with an experienced New Jersey divorce attorney, feel free to call me at 201-731-3086, or send me an e-mail using the e-mail contact form on this page. I have been helping clients in divorce cases in Bergen, Passaic, Hudson, and Essex counties for over 20 years. The phone or e-mail consultation is free.