Assessing Fault During a Divorce Case
The Role Fault Plays in Divorce Cases
When you file for a divorce in New Jersey, you can seek a fault divorce or no-fault divorce depending on the situation. In 2019 alone, there were just under 747,000 divorces, some of which were based on spousal fault. Knowing the difference between no-fault and fault divorces could help you determine which type of divorce is right for you.
Differences Between No-Fault and Fault Divorces
There are two basic types of divorce cases that you can file for in New Jersey, which include fault divorces and no-fault divorces. A no-fault divorce is based entirely on irreconcilable differences between both spouses, which means that the couple is unable to get along and don’t believe that they’ll get back together at any point in the future.
Many spouses who start a divorce case find no-fault divorces to be appealing since fault doesn’t need to be established in court. Proving fault before a judge can be embarrassing when allegations of fault need to be stated. If both spouses can be amicable with one another while the divorce case is ongoing, a no-fault divorce may be a good option.
When you want to file for a no-fault divorce, there are numerous requirements that you and your spouse must meet. For instance, at least one spouse must live in the state of New Jersey for one year before filing for divorce. Irreconcilable differences must have occurred for at least six months between both spouses in order to pursue this type of divorce. These irreconcilable differences need to be substantial enough that the marriage appears to be over. Both spouses will also need to agree that there isn’t a reasonable chance for any kind of reconciliation.
As for a fault divorce, it’s less common than no-fault divorces since fault must be shown in front of the court. One spouse will be tasked with showing that the actions of the other spouse caused the marriage to fall apart. There are many reasons that a couple could pursue a fault divorce, which include everything from adultery to physical cruelty.
Keep in mind that the determination of fault can dictate how several aspects of the divorce case are resolved. For instance, the court’s decision pertaining to alimony could be altered by an allegation of fault. If one spouse is deemed to be at fault for the divorce, they may be tasked with paying higher spousal support payments. These payments could also be lowered if the spouse who was at fault is set to receive alimony.
It’s also possible for property division to change based on the fault of one spouse. The same is true for child custody and child support. If you’re thinking about filing for a fault-based divorce, it’s important that you think about how this case will affect child custody and property division. Our Hackensack divorce attorney can help you determine how your divorce case will be affected if you allege that your spouse is at fault for the divorce.
How Property Is Distributed During a Divorce
New Jersey is considered to be an equitable division state when it comes to dividing property between both spouses. Equitable division doesn’t always mean that assets, possessions, and property must be divided on a 50/50 basis. Instead, it means that the division of property must be fair.
Keep in mind that marital property usually includes all debts and assets that were acquired while the marriage was ongoing. Even if you purchased a piece of furniture with your own money during your marriage, it would be considered as part of the marital property. Along with the length of your marriage, some additional factors that the court considers when dividing property include:
- Age of both parties
- Health of both parties
- Standard of living
- Income during marriage
- Prenuptial agreements
- Earning capacity
- Career sacrifices
- Current property value
If you believe that filing for a fault-based divorce will allow you to receive more property than your spouse, it’s important to understand that this isn’t always the case. First, fault must be proven, which can be difficult and requires gathering ample amounts of evidence. Each judge is different and could make different rulings based on the evidence they hear. Even if fault is proven, the division of property may still be equal.
Fault Grounds That Apply to New Jersey Divorce Cases
If you wish to file for a fault divorce in New Jersey, there are numerous grounds for fault that the court will consider in this type of divorce case. The primary grounds for fault include:
- Desertion
- Extreme cruelty
- Imprisonment
- Institutionalization
- Adultery
- Addiction or drunkenness
If you would like to file for divorce based on an allegation of desertion, keep in mind that desertion is only allowed if your spouse has left the marriage without communicating with you for a period of at least 12 months. As for imprisonment, this occurs when the defendant has been in jail for a period of at least 18 months without resuming cohabitation.
The extreme cruelty grounds can cover many different forms of abuse. If you speak with our attorneys, we can help you identify if you would be able to file for a fault divorce based on extreme cruelty. Institutionalization grounds are allowed by the court if the defendant has been institutionalized because of mental illness for at least two years. As mentioned previously, fault must be proven in court, which will likely require an in-depth investigation by our attorney.
When You Should Hire a New Jersey Divorce Attorney
While it’s possible to resolve a divorce case in a short period of time, a quick resolution mostly occurs when both spouses are amicable and are able to agree on aspects of child custody, alimony, and other divorce considerations. In the event that you’re filing for a fault-based divorce, this will likely be a complicated case that could take some time to resolve. If you want a favorable outcome for a fault-based divorce, you should seek representation from a reputable divorce lawyer like ours.
When you make an allegation of fault against your spouse, your claim must be proven before a judge. To that end, our attorneys can assist you by gathering all of the evidence and building a strong case that takes this evidence into account. While a judge usually doesn’t change their decision on how property is divided for a fault-based divorce, they may make alterations to alimony payments, child custody, and other aspects of the divorce, which is why filing for a fault divorce may be preferable.
When you first request our services, we’ll provide you with an initial consultation that allows us to sit down with you and learn more about the details surrounding your case. This consultation gives us the information we need to determine which type of divorce is right for you and what we believe your next legal steps should be. Whether you decide to file for a fault divorce or no-fault divorce, our experienced attorneys can help you fill out and file the necessary paperwork before presenting the case before a judge. Call us now to learn more about our services and how they can help you.
If you’re currently thinking about filing for a fault-based divorce but don’t know where to begin, call our Hackensack divorce attorneys today at (201) 343-0078 or email us at kelly@bertonrocco.com to schedule your first consultation.
