Separation Period No Longer Required
In obtaining a divorce in New Jersey, the law no longer requires that the parties live apart for a period before filing. Instead, one spouse may allege the no-fault ground of irreconcilable differences. This ground does have a time requirement of showing that the differences have persisted for more than six months, but this is generally not an an issue for a couple that has been married for more than six months. It is difficult to argue against the filing spouse's claim about when the marriage started to fall apart, as this assessment can be personal and highly subjective. However, if the date of marriage occurred less than six months before the date of filing for divorce, it would be impossible for the time requirement to be met, and instead the couple would need to wait out any remaining time before the court will proceed with the divorce.
Separation Grounds Still Available
While the ground of irreconcilable differences has been added to the books in New Jersey, it did not replace separation as a no-fault basis for divorce. In order to dissolve a marriage based on separation, the law requires that the parties live separately for a minimum of 18 months. Separate in this context means that you and your spouse must live in different residences and there is no reasonable possibility of reconciling. The fact that a couple has lived in separate residences for the required time period creates a presumption that there is no possibility of reconciliation. However, this presumption could be overcome by providing sufficient evidence that the marriage can be repaired, such as letters between the parties showing a willingness to work things out.
Settlement Agreements During Separation
If you decide to file for divorce on separation grounds and have not yet met the 18-month requirement, you have the option of drafting and executing a settlement agreement. This agreement operates like a contract and may cover issues related to the division of marital property and debts, custody and visitation of any children, and child and spousal support during your separation period. The language in the agreement must be specific and clear on each party's obligations. If properly executed, the document becomes legally binding; thus, you may request a court enforce its terms if one party later fails to honor the agreement. Additionally, if you and your spouse wish for the terms of the agreement to remain in effect after your divorce, the agreement may be incorporated into your divorce decree, upon approval by the court, once the divorce is finalized.
Fault Grounds With Reduced Waiting Periods
There may be instances where the no-fault grounds of irreconcilable differences or separation are not the best option for the filing spouse. New Jersey law provides for fault-based grounds, including adultery, extreme cruelty and willful and continued desertion. Whether a spouse may choose to file on any of these grounds depends on the specific facts of the case. For example, the ground of adultery removes the requirement that couples live separately, provided that one party proves the other was unfaithful. If one party has been the victim of severe mental or physical abuse, she may consider filing on the basis of extreme cruelty, which also does not require a period of separation, only that the petition for divorce is filed at least three months after the most recent act of cruelty. If proven, this ground may influence a court's custody decision, particularly if there is a history of domestic violence. Finally, if one party has inexplicably left the marital home for at least 12 months, the other spouse might consider filing for divorce on the basis of willful and continued desertion. This ground differs from separation in that it must be proved that one spouse intentionally abandoned the other, as opposed to simply maintaining a separate residence.