Divorce Made (Too) Easy?

For years New Jersey only had one no fault ground for divorce — eighteen month separation — which requires that husband and wife live separate and apart in different residences, where the parties have not engaged in sexual relations with one another, for a period of at least eighteen or more consecutive months. In the case of eighteen month separation, neither party may file a complaint for divorce until after the eighteen month period. The rationale behind this no fault ground is that the State of New Jersey has an interest in preserving family life, and therefore created a eighteen month “cooling off period” when parties do not have fault grounds upon which to divorce.
The reality of the matter is that most people choose not to wait eighteen months due to their desire to quickly terminate the marriage and move on with their lives. This need for quick results lead an overwhelming majority of couples, who had no actual fault grounds for divorce and who could not wait over a year to file for divorce, to file under extreme mental cruelty, which requires that the complaint be filed only three months from the date of the last act of cruelty complained of. Extreme mental cruelty is commonly defined as behavior considered so extremely mentally cruel that it becomes unreasonable to live together as husband and wife. By its very definition, this “fault” ground for divorce is so subjective that anything could really pass as being so extremely mentally cruel that it becomes unreasonable to live together as a married couple.
In fact, many family law practitioners would file what is known as a “vanilla” complaint for extreme mental cruelty for those plaintiffs whose reasons for wanting a divorce did not qualify under any other type of fault ground. Examples of claims alleged in a “vanilla” complaint for extreme mental cruelty are: 1) Defendant has been personally cold and disaffectionate towards the Plaintiff; 2) Defendant has ridiculed and criticized the Plaintiff ; and 3) Defendant has told the Plaintiff on numerous occasions that he no longer loves or cares for her. While these claims certainly got the job done under the extreme mental cruelty ground, it wasn’t until the Legislature enacted the irreconcilable differences statute that parties were able to file for divorce by alleging one simple claim.
The quasi no fault cause of action requires that the plaintiff allege that irreconcilable differences have caused a breakdown of the marriage for a period of six months, which make it appear that the marriage should be dissolved and that there is no reasonable prospect of reconciliation. Further, irreconcilable differences do not require that the parties live separate or apart and many people are surprised to learn that they may live together after commencing a divorce action. Thus, today, filing for divorce is arguably easier than applying for a marriage license. Divorce, itself, however, is often an emotionally charged and extremely trying experience for both parties and should not be taken lightly.

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Fault And The Division Of Property

Frequently, matrimonial attorneys have someone come in for a consultation and offer some variation of the following: “I had an adulterous affair.  My spouse says that because I am at fault for breaking up the marriage, [s]he will get everything. ”  While it is true that in New Jersey there are fault and no-fault grounds for obtaining a divorce, except in the most extreme instances (such as hiring a “hit-man” to kill your spouse), fault in the break-up of a marriage has little meaning in the division of assets or awards of support.  Marital property is divided in New Jersey by what is referred to as equitable distribution.   This does not necessarily mean that assets are automatically divided on a 50/50 basis.  Rather, Continue reading “Fault And The Division Of Property”

Filing Joint Tax Returns During Divorce Litigation

Often during divorce litigation, it is financially prudent for the parties to file a joint tax return, as opposed to filing individual tax returns.  The Court may even compel the joint filing.  However, under certain circumstances, the Court may elect not to force a concerned spouse to file jointly.

If one spouse habitually underestimates his/her income, or otherwise has a history of filing inaccurate tax returns, the Court may recognize that it would be inequitable to force the “innocent” spouse to risk exposure to tax liability by filing with the other party.

Death of a Spouse During the Divorce

What happens when one of the parties dies during the litigation?  Can the estate of the now-deceased spouse intervene and secure part of the marital estate or does the entire divorce action collapse and the surviving spouse keeps it all?

In a recent case, the estate of the deceased spouse intervened to prevent the “unjust enrichment” of the surviving spouse, who the estate alleged had committed fraud against the deceased spouse.  The court decided that the estate will have its “day-in-court” and would not be prevented from trying to recover monies from the surviving spouse.

The above scenario of a litigant dying happens more than one may think (it tragically happened to one of my clients).  How would a new will drafted by that litigant, after the complaint was filed, have affected the outcome?