Tag Archive for: grounds for divorce

Grounds for Divorce in NJ

Section 2A:34-2 of the New Jersey Divorce Statutes outline the different causes of action available for a divorce. New Jersey recognizes no-fault grounds for divorce on the basis of separation or irreconcilable differences. The parties must live separately for at least 18 consecutive months with no prospect of reconciliation to succeed on the no-fault ground for separation as governed by 2A:34-2(d). A divorce complaint cannot be filed until the 18 month period of separation has elapsed with the presumption that no reasonable prospect of reconciliation occurs after that period. The parties must have experienced irreconcilable differences for six months or more with no reasonable prospect of reconciliation to obtain a divorce on the basis of irreconcilable differences pursuant to 2A:34-2(I). In the case of an irreconcilable differences divorce or one based on fault grounds, the parties do not need to actually separate prior to commencement of the action.

New Jersey also recognizes fault grounds for divorce including adultery, desertion, extreme cruelty, voluntary addiction or habituation, institutionalization, imprisonment and deviant sexual conduct. Desertion must be willful and continued for a period of 12 months or more. Extreme cruelty can be mental or physical but must be to the extent that it makes it unreasonable to expect the parties to continue to reside together. The fault ground for voluntary addiction refers to addiction to any narcotic drug and/or habitual drunkenness for 12 months or more. Institutionalization for a mental illness must be of a period greater than 24 consecutive months. A divorce can be awarded on the basis of imprisonment for 18 months or more. If the divorce is not commenced until after the defendant’s release the parties cannot have resumed cohabitation. Finally, deviant sexual conduct is that which is voluntarily performed by the defendant against plaintiff’s will. Adultery can be established through circumstantial evidence and generally requires some corroboration. When raising a claim for adultery, the third party who participated in the adultery must be named as a co-defendant and has the right to intervene. There is generally no benefit to pursuing a fault based divorce over a no fault divorce.

All grounds for divorce require NJ residency for a period of at least one year with the exception of adultery. This is true as it relates to divorce from the bonds of matrimony, or absolute divorce, as well as divorce from bed and board, or limited divorce. In the case of a limited divorce the parties will still be legally married but are able to achieve separation financially. Just as with a divorce, the parties can enter an agreement to divide all their marital property or submit to the court for a decision on division. Alimony may also be awarded where appropriate. Health insurance may continue if covered by the other spouse and legal separation is not specified as a reason for termination. A divorce from bed and board can be converted to a divorce from the bonds of matrimony if the parties elect to go through with a full divorce. It can also be revoked such that the parties resume their marriage.

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90 day Mutual Consent Divorce

A no-fault divorce means that neither party is asserting that the other party did something wrong. Instead, the assertion is that the marriage is simply irretrievably broken. In Pennsylvania, a no-fault divorce may be granted after a waiting period of 90 days provided both parties consent to the divorce at the conclusion of the waiting period. This waiting period is often referred to as a cooling-off period. It is utilized to give the parties an opportunity to reflect on the severity of the decision to get a divorce and/or seek marital counseling to see if the relationship can be saved. The 90-day waiting period begins to run from date of service of the Complaint in Divorce.

At this point, almost half of the states have some waiting period between when you file and when you can be divorced however, there does not appear to be any correlation between the length of the cooling off period versus the rate of divorce. New Jersey and Arkansas have longer waiting periods for a no-fault divorce. New Jersey has one of the lowest divorce rates in the country while Arkansas has one of the highest divorce rates. Pennsylvania does specifically indicate its policy behind the mandatory waiting period is to “encourage and effect reconciliation and settlement of differences between spouses” as the “protection and preservation of the family is of paramount concern.” 23 Pa. C.S. 3102.

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A No Fault Divorce does not always mean a simple divorce

In Pennsylvania, many people hear the words no-fault divorce and expect that it is going to be simple. Most people in Pennsylvania will get divorce on no-fault grounds, even when there has been infidelity or abuse. No-fault divorces refers to the grounds for divorce, meaning you either both sign consents to a divorce, or after two years of separation, you obtain grounds based on a two year separation. It does not necessarily mean that it will be simple. The complexity depends on the assets that have accumulated during the period in which the two parties are married as well as the difference in the incomes. If the parties are seeking to allocate assets between them or one party is seeking alimony, it does not mean that you no-fault divorce will be simple. You will need to either come to an agreement on these issues or you will have to go to court. The simple divorce, however, is the divorce where there are no assets and there is no alimony sought. In those type of cases, you can get divorced relatively quickly after both parties consent or the two year period has passed. You will also not have to go to court and you can process the divorce through the mail. This is true even if there are children since custody is handled separately from the divorce.

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Explaining a Waiver form for Divorce

Oftentimes parties are pro se, meaning they represent themselves. Sometimes, it can be frightening to receive paperwork in the mail that you do not understand or fear may end upwaiving your rights. In a divorce you may receive one of two types of a waivers. One is called a waiver of Notice of Intent to Request a Grounds Order and the other is a Waiver of Notice of Intent to Request a Divorce Decree. What these forms mean if you sign them are that you are giving up the 20 day notice required to let you know either a grounds order or decree will be entered. In the case of the decree, you need to make sure that you have reached an agreement on everything before you sign it. Otherwise, if you did not make claims for alimony or to divide property, they will be waived if you sign that and a decree gets entered. If you are served with one and have not raised claims but want to, you will need to do that rather quickly. For a waiver of notice of intent for a grounds order, it means grounds will be entered. You are not divorced just because grounds are established, however, you may lose rights to inherit if your spouse dies and you may want to make sure discovery is done. If you are ready to move to your divorce hearing, then signing a waiver for the grounds will not hurt you.

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Divorce after Two Year Separation

After two years of separation,  grounds for divorce can be achieved in PA without the consent of the other party. One of the two no-fault grounds for divorce is a two year separation. This separation does not have to mean physical separation. It is legal separation. Legal separation is no later than the date that a divorce complaint is filed. Parties can reside together in the same home while the divorce is pending. After two years, however, from the date the divorce was filed, one party can allege that it has been two years and seek grounds for divorce based on that fact. The other side must actively file a counter-affidavit denying the two year separation or denying there is an irretrievable breakdown of the marriage in order to stop the grounds for divorce from being entered. If a counter-affidavit gets filed, a hearing will be needed to determine if in fact the two year separation has occurred. Grounds for divorce is only the first step in getting a final divorce. In order to get a final divorce, if claims for equitable distribution or alimony have been raised, an agreement either needs to be put in writing or the parties need to go to a divorce hearing after they get grounds for divorce. This is often why there are cases that take at least three years before they are final, and some much longer.

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What Happens to the Divorce if you Spouse dies?

If you are getting a divorce, what happens if your spouse passes away before it is finalized? Under Pennsylvania law, if you have established grounds for divorce, the Family Court may still proceed with equitable distribution of your assets. They cannot grant a divorce posthumously, but you can still seek your share of the assets that you both accumulated while you were married. This is especially important in cases where the assets are held in your spouse’s name. You will need to file a Petition to substitute your spouse’s estate as the other party.

If you do not have grounds for divorce, then the divorce action will terminate and you will have to pursue your rights in Probate Court. Under the Estate laws, as a surviving spouse, you are entitled to receive in Pennsylvania 30% of your spouse’s estate even if they did not include you in the will. You would have to file a Petition to seek your elective share of the estate. If you have grounds for divorce at the time your spouse has passed away, you lose your right to seek the elective share.

If you have a spouse who is ill while you are getting divorced, it may be important to make sure you have established your grounds for divorce. In Family Court, there is a greater possibility that you will receive more of the assets since it is a Court of equity. It does not mean that since your spouse died, you will receive everything, but you likely will fair better than if you have to go to Probate Court. In order to establish grounds under the no-fault statute, you either have to have both parties consent to the divorce after 90 days of service or you can move to establish the grounds after a two years separation.

For additional information see:/Family-Law-Divorce/Grounds-for-Divorce/

 

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What happens if I don’t want a divorce?

Pennsylvania has two no-fault grounds for divorce. One is where both parties consent after 90 days of one being served the complaint and the other is where one party does not consent and the other party moves the divorce forward after a two year separation. If your spouse wants a divorce and you do not want a divorce, ultimately, unless they change their mind, they will be granted a divorce. Even if you have children and you contest that it is not in the best interest of the children, if your spouse does not wish to be married anymore, ultimately, the court will grant a divorce. You can delay the divorce by not consenting to the divorce. This will force your spouse to wait the two year period from when you separated before they can move the divorce forward. Even at that point, you can still contest that it is not irretrievably broken or that the two year separation has not occurred. You can say discovery is not completed and further delay the divorce or file an appeal. While there are many ways that a divorce can be delayed, ultimately, it will become final if one of the parties wants a divorce. The day will come when the marriage will end. While you may not want a divorce, you should weigh the benefits of delaying it against the costs. Unless you really think there is a chance of reconciliation if you delay it, or you benefit financially for health insurance purposes, sometimes, moving on quicker and accepting the ultimate outcome is better. It enables you to heal quicker and create a life that does not involve the pain and emotional turmoil that a drawn out divorce creates. It also may be financially better to have the finality and save in extended legal fees. Finally, it may also make it possible to move on to a different relationship with your ex-spouse where you are able to maintain a civil relationship verus one filled with resentment for keeping them in a marriage that they no longer desire.

For more information, see:/Family-Law-Divorce/Grounds-for-Divorce/

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NJ Grounds for Divorce

Section 2A:34-2 of the New Jersey Divorce Statutes outlines the different causes of action available for a divorce. The fault grounds include adultery, desertion, extreme cruelty, voluntary addiction or habituation, institutionalization, imprisonment and deviant sexual conduct. Desertion must be willful and continued for a period of 12 months or more. Extreme cruelty can be mental or physical but must be to the extent that it makes it unreasonable to expect the parties to continue to reside together. The fault ground for voluntary addiction refers to addiction to any narcotic drug and/or habitual drunkenness for 12 months or more. Institutionalization for a mental illness must be of a period greater than 24 consecutive months. Finally, deviant sexual conduct is that which is voluntarily performed by the defendant against plaintiff’s will.

New Jersey also recognizes no-fault grounds for divorce on the basis of separation or irreconcilable differences. The parties must live separately for at least 18 consecutive months with no prospect of reconciliation to succeed on the no-fault ground for separation. The parties may have experience irreconcilable differences for six months or more to succeed on that ground. All grounds for divorce require NJ residency for a period of at least one year with the exception of adultery. An adultery claim requires the third party who participated in the adultery be named as a co-defendant.

Click here to read more on NJ Family Law.

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