Like most states in the nation, New Jersey adopted a “no-fault” divorce model in the 1970’s, which permits spouses to unilaterally dissolve marriages, without digging up the root causes or detailing the marital dysfunction.

Surely, the fault based divorce is not dead, right? Is there not SOME reason to state a fault-based claim against a deserving wrongdoer? The answer, it turns out, is sometimes a definitive “YES!!”

The benefits of “no fault” divorce

Since the 1970’s, the “no-fault divorce” model has been touted for freeing spouses from the burdens and stigma of pointing fingers and airing dirty laundry. The “old” system required parties to be malicious and destructive in their divorce pleadings, even when they didn’t want to be and even if it wasn’t entirely the truth.

Today, by permitting people to chalk up their divorces to ambiguous “irreconcilable differences”, the Legislature allows couples to part company with less animosity, preserve important relationships, live in the same house pending divorce if they wish, not force people to lie, and not aggravate extended families.

Fault divorces are granted based on misconduct

Marital fault, unless “egregious”, is irrelevant to child custody, parenting time, or receipt of child support, alimony, or marital property.

After decades of considering these issues, the New Jersey Supreme Court finally broke free of a fault-based economic analysis in Mani vs. Mani, decided in 2005. There, the Court held that fault was not relevant to alimony except in “egregious circumstances”, and the dependent spouse’s extramarital affair did not so qualify.

The Court drew fairness lines between actions that, while socially frowned upon, do not disqualify a dependent spouse from financial assistance, as contrasted with “egregious misconduct” that should disqualify even a dependent spouse from such assistance.

Egregious fault may support not only a divorce action but also financial consequences to the blameworthy party

Domestic violence, criminal violence, gambling losses, or theft of significant family assets, could lead to disqualification for alimony or reallocation of otherwise joint and divisible marital assets.

Personal injuries caused by one spouse’s actions against another could lead to recovery of damages for negligent, reckless, or intentional misconduct, including compensatory and punitive damages claims, which almost certainly will be included in the divorce complaint and presented to the same trial judge who is assigned to other divorce issues. Here, public policy supports recovery by one spouse against the other on fairness grounds (the Family Court is a branch of the Chancery Division, which is primarily a court of equity).

The Supreme Court of New Jersey, while raising the threshold in Mani of what behavior is socially tolerable, also maintained a strict standard of fairness between spouses when it comes to “egregious fault”.

What are the fault grounds for divorce?

Even though no-fault divorce have become increasingly popular, and are the most frequently used grounds for filing, New Jersey still offers conventional fault divorces, based on the stated misconduct of one (or both) of the spouses.

Among the fault grounds upon which New Jersey divorce may be granted are:

• Adultery (also requires service upon the named “co-respondent”);
• Willful desertion (i.e., abandonment) for at least 12 months;
• Physical or mental cruelty that either endangers the safety or health of a spouse, or makes cohabitation with the abuser unreasonable or improper;
• Sexual deviancy of a spouse; and
• Continued alcohol or drug abuse for a period of at least 12 months.

Per the above list, the law deems adultery to be conduct that is simply not tolerated in a loving marriage, while not disqualifying the wrongdoer from alimony.

Marital fault may be taken into account in child custody determinations

While there may be little reason to allege fault grounds in many circumstances, custody and parenting time determinations remain an area where fault could be relevant, even a tie-breaker. Certainly, uncontrolled addictive behaviors regarding substances or gambling are relevant to child custody. But even lesser misconduct, such as extreme cruelty, involving claims of poor anger management, emotional battering, and intimidation, could have a bearing on custody and parenting time outcomes. Often, expert witnesses are brought in to connect the dots.

Conclusion

It is wise to discuss with your legal counsel the implications of a fault-based filing versus a more “garden variety” claim. Sometimes they can be used together, just in case things get ugly and out of hand further down the divorce road. It is easier to voluntarily dismiss a claim once brought than to justify adding one that may look to the trial court like it is being thrown in later just for spite, as in: “If this was true from the beginning, then why didn’t you bring it up before now?”

If you require legal information or assistance in the family law field, we invite you to explore our website, call us, or write. We want to hear from you. It will be our pleasure to serve you.