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When filing for divorce, a party must identify the underlying basis, known as a cause of action, to justify why he/she is entitled to a divorce. These causes of action include both “fault” and “no fault” grounds. Historically, the only “no fault” cause of action was eighteen months separation, while the “fault” based actions included adultery, willful and continued desertion, extreme cruelty, voluntary induced addiction or habituation to a narcotic drug, institutionalization for mental illness for a period of 24 or more months, imprisonment of the defendant for more than 18 months and deviant sexual conduct. In 2007, the law changed to introduce another no fault cause of action, known as “Irreconcilable Differences” to reduce the burden of proof on divorcing couples.

Why is this beneficial for those divorcing? Irreconcilable differences as a cause of action was adopted in an effort to avoid roadblocks to a final divorce. As recognized in the case of Groh v. Groh, 439 N.J. Super. 186, 191 (Ch. Div. 2014), the history behind the inclusion of irreconcilable differences as a cause of action “was clearly intended and designed to permit people to end their marriages in a common dignified manner without having to engage in hurtful and unproductive mudslinging over who was at fault for the failure of the partnership.”

Previously, if two parties were not separated for eighteen (18) months or longer, most divorce filings were based upon extreme cruelty which led to some creative and ridiculous claims. Now under this cause of action, a party simply has to prove that irreconcilable differences caused the breakdown of the marriage for a period of six months or longer making it appear the marriage should be dissolved and there is no reasonable prospect of reconciliation. Unlike a count for extreme cruelty, it is unnecessary to specify any particular incidents that caused irreconcilable differences to arise.

A common question is whether a party can challenge a divorce on these grounds. In short, the answer is no. Logically, if one party is claiming there were irreconcilable differences and the other party is saying the differences were not irreconcilable, that dispute in itself is irreconcilable and hence, the cause of action is proven.

New Jersey courts have explicitly recognized that the concept of fault-based divorce has as a practical matter been all but replaced by no fault litigation irreconcilable differences under New Jersey law (N.J.S.A. 2A:34-2(a)).

In sum, the inclusion of the no fault grounds of irreconcilable differences has simplified the process and often, serves to help couples avoid any unnecessary mudslinging in the road to obtaining a Final Judgment of Divorce.

If you are thinking about divorce, contact one of our experienced attorneys.

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Effective September 14, 2015

 

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