Fault Or No Fault That Is The Question

In the state of New Jersey, parties may choose either fault or no-fault grounds for divorce. While this was not always the case, as of the year 2007 a party may choose to file his or her divorce under “irreconcilable differences” instead of choosing another fault-based cause of action. The term “irreconcilable differences” is simply a way to say that the parties no longer get along, for whatever reason. This now begs the question of when it is appropriate to choose fault grounds, such as adultery or extreme cruelty, over the no-fault cause of action of irreconcilable differences.

First, and probably most obvious, is that in order to file under a fault cause of action, the actual fault must exist. Simply put, if you want to file a divorce under adultery, there should have actually been adultery. Further, it is important to note that you will have to substantiate your claim that this adultery occurred by being able to state with reasonable certainty when, where and with whom. You will also need to be prepared to serve the person with whom the adultery with a notice that he/she is named in your complaint. For some, it is important emotionally to go through this exercise. For others, it is not worth the additional effort, so the party chooses to file a no-fault cause of action instead.

There are other considerations when determining which cause of action should be used for a complaint for divorce. While the fault of one party over another does not impact a judge’s decision relative to equitable distribution and in many cases does not impact an alimony award, it may impact other aspects of your case. It is important to speak with an experienced family law attorney so that you can make an informed decision prior to filing your complaint for divorce. Posted by Robyn E. Ross, Esq.