New Jersey Divorce Requirements

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DIVORCE

Under New Jersey Law, you have the right to represent yourself in all legal cases, including divorce.

The legal term for representing yourself is "pro se," pronounced "pro say") which is Latin for "on your own behalf." Representing yourself is not a good idea for everyone. It is important to understand that by representing yourself, you may be giving up important rights. It is very important for you to find out if your spouse has a pension, retirement account, insurance or other significant property before you decide whether to file your own divorce. If you do not ask for such things in the divorce, you will give them up forever.�

Before you file for divorce on your own, you need to talk to your spouse, if possible, and find out how he/she feels about the divorce and about the issues mentioned above. This will give you an indication on how to proceed with the divorce.�

The law limits the authority of the court to grant divorces (known as a question of jurisdiction-can this court hear this divorce?). The law also dictates when the court has jurisdiction over a divorce proceeding.�

Within New Jersey, the Superior courts have jurisdiction to hear divorce cases. Generally, the Superior court with jurisdiction for your case is the Superior court in the county where you live or the Superior court in the county where your spouse lives. When you file the relevant papers, you must have stated your grounds for that court to have jurisdiction. If not state correctly, your spouse could file a motion to dismiss your case.�

After you file your papers, your spouse has 30 days (if your spouse lives in New Jersey), 60 days (if your spouse lives outside of New Jersey, but in the United States), or 90 days (if your spouse lives outside the United States) to respond to your request for divorce (known as a Complaint). If your spouse fails to respond, the court will proceed with the divorce so long as service of process has been completed correctly. Whether or not your spouse responds, you and your spouse will have to appear before the court in a hearing scheduled by the clerk. At the end of the hearing, the court will decide at some later time (normally 30 days) to grant a divorce. Generally, a divorce can be granted within about a month after filing, if a settlement agreement is reached and if service of process is promptly executed.

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RESIDENCY�

: In order to file for a divorce in New Jersey, either spouse must have been a resident of the State for at least one (1) year, prior to the filing of the action. Furthermore, pursuant to the New Jersey statutes/rules, �Except as otherwise provided by law, venue in actions for divorce, nullity and separate maintenance shall be laid in the county in which plaintiff was domiciled when the cause of action arose, or if plaintiff was not then domiciled in this State, then in the county in which defendant was domiciled when the cause of action arose; or if neither party was domiciled in this State when the cause of action arose, then in the county in which the plaintiff is domiciled when the action is commenced, or if plaintiff is not domiciled in this State, then in the county where defendant is domiciled when service of process is made. For purposes of this rule, in actions brought under N.J.S.A. 2A:34-2(c), the cause of action shall be deemed to have arisen three months after the last act of cruelty complained of in the Complaint. RULE 5:7. DIVORCE, NULLITY, SEPARATE MAINTENANCE, 5:7-1. Venue.

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SAME STATE, DIFFERENT ADDRESSES�

You do not have to remain at the same address to fulfill your residency requirement. You can move anywhere within the state from which you are filing. The forms do not require you to list all addressees, but you should be prepared to prove where you lived during the separation in the final hearing.�

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PROOF OF RESIDENCY�

Your residency is substantiated by your sworn complaint. The testimony is all that most courts require to verify residency. But cases have been dismissed and even overturned because of improper proof of residency.

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RESIDENT VERSUS NONRESIDENT�

A court may take on a divorce proceeding even if your spouse is not a resident of New Jersey. If you or your spouse move to another state after the divorce has been filed, you may still have your case heard in New Jersey.

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HOW TO ESTABLISH RESIDENCY�

Register to vote. Get a driver's license. Get a job. Open charge accounts. Register your car. Take out a library card. The list is endless. But whatever you do, do not maintain a residence in another state that could imply that you do not intend to remain in the state from which you file.

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COUNTY JURISDICTION�

New Jersey has counties that govern which court your divorce will take place in. This is called venue. The divorce must be filed where either the plaintiff or defendant resides or where either is regularly employed or has a place of business.�

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DIVORCE: Fault and No-Fault

Divorce is the ending of a marriage ordered by a court. Annulment establishes that your marital status never existed. The court will declare that you were never married. Because the courts rarely grant an annulment, you should think twice about using this route if you want to end your marriage. The court may look to, but is not limited to, the legitimacy of children and the preservation of the sanctity of marriage. Because of these consideration a court will look to granting a divorce instead of an annulment.

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Grounds

There are three principal players involved in your marriage that will also be involved in your divorce: you, your spouse, and the state. You cannot simply break up, saddle your charger, and ride off into the sunset. Among other legal considerations, you have to give the state an acceptable reason why you should be allowed to break up. The reason is known as the ground for your divorce. Over the years each state has enacted legislation that governs acceptable grounds.

Any of the following grounds may be used for divorce in New Jersey:

(1) Irreconcilable differences which have caused the breakdown of the marriage for a period of six months and which make it appear that the marriage should be dissolved and that there is no reasonable prospect of reconciliation.

and

(2) Living separate and apart for 18 months and no reasonable prospect of reconciliation. [New Jersey Statutes Annotated; Title 2A, Chapter 34-2].

In addition to the no-fault grounds for divorce, New Jersey has fault grounds. These fault grounds include:

Extreme cruelty includes any physical or mental cruelty which makes it improper or unreasonable to expect that individual to cohabitate with their spouse. N.J.S.A. 2A:34-2(c).

Adultery
The courts have held that "adultery exists when one spouse rejects the other by entering into a personal intimate relationship with any other person, irrespective of the specific sexual acts performed; the rejection of the spouse coupled with out-of-marriage intimacy constitutes adultery." New Jersey Court Rule 5:4-2 requires that the plaintiff in an adultery divorce case, state the name of the person with whom the offending conduct was committed. This person is known as the corespondent. If the name is not known, the person who files must give as much information as possible tending to describe the adulterer.

Desertion
The willful and continuous desertion by one party for a period of twelve or more months, and satisfactory proof that the parties have ceased to cohabit as man and wife constitutes desertion under N.J.S.A. 2A:34-2(b).

Addiction
Under N.S.J.A 2A:34-2(e), addiction involves a dependence on a narcotic or other controlled, dangerous substance, or a habitual drunkenness for a period of twelve or more consecutive months immediately preceding the filing of the complaint.

Institutionalization
When one spouse has been institutionalized for mental illness for a period of twelve or more consecutive months subsequent to the marriage and preceding the filing of the complaint, institutionalization is a ground for divorce under N.J.S.A. 2A:34-2(f).

Imprisonment
Imprisonment as a ground for divorce occurs when a spouse has been imprisoned for eighteen or more months after the marriage. N.J.S.A. 2A:34-2(g).

Deviant Sexual Conduct
Deviant Sexual Conduct occurs if the defendant engages in deviant sexual conduct without the consent of the plaintiff spouse. N.J.S.A. 2A:34-2(h).

In New Jersey there are two types of annulment. In the first type the marriage is declared void ab initio, or from its inception, as though it had never existed. You do not legally have to go to court to have the marriage declared void ab initio, although it's a good idea to do so. In the case of an annulment, a marriage must be "totally void" in order for it to be considered annulled.

There are two characteristics of a "totally void" marriage:

  • the marriage posses some defect rendering it susceptible to collateral attack (some evidence that shows the marriage never happened or should have never happened) even after the death of one or both spouses; and
  • no direct step or proceeding to annul is necessary (although the latter may be desirable).

One such defect is if your spouse was formally married to someone else and still has not divorced that person. Your marriage to this spouse is considered totally void.

Another defective marriage is one done between "blood" relatives.

The second type of annulment is called voidable. A voidable marriage can only be annulled by going to court and having it declared void. . Annulment is available in New Jersey, and in some cases it can be obtained under the name of a divorce. Along with obtaining an annulment for bigamy and for lack of consensual age, a marriage may be declared void if the parties did not really intend to marry or if they are incapacitated, as in insanity, intoxication, fraud, and duress. Although annulments may be granted, the preference of the court is not to annul, but for the parties to divorce. Also, any marriage that is expressly prohibited by statute is void by annulment.

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WAITING PERIODS FOR DIVORCE�

Under each ground for an absolute divorce, there is a provision for when you can bring the lawsuit against your spouse to the court. However, if you claim that your spouse committed adultery, you can bring the action for divorce at any time. As long as you can fulfill the residency requirement (discussed in the residency section) there is no time limit when claiming adultery.

If your spouse has been convicted of a felony or misdemeanor with a sentence of at least 18 months you can file for divorce.�

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ADULTERY�

Adultery is sexual intercourse between a married person and someone other than the spouse. In New Jersey, neither cunnilingus nor fellatio, which the law defines as sodomy, is a ground for divorce and generally neither is considered adultery. The sexual intercourse must involve some penetration of the female organ by the male organ, but a "completion" of the sexual intercourse is not required.

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HOW TO PROVE ADULTERY�

There probably is no such thing as a pleasant adultery case; because names, dates, places, paramours, and the like have to be brought out in the open. If your spouse no longer cares about what you know and is open about the affair, you're lucky. You can then catch your spouse flagrante delicto, which means you have your spouse in the flagrant wrong and may not have to worry about hiring detectives. However, you may still need a detective to prove your case in court. There is still a need for a corroborative witness, such as a mutual friend or neighbor, who has no stake in the matter except telling the court what he (she) witnessed.

Most adultery cases are proven by circumstantial evidence, which means that you have to establish that your spouse had the disposition and opportunity to commit adultery.

Public displays of affection, such as hand-holding, kissing, and hugging, between the guilty spouse and the paramour are generally sufficient evidence to indicate an adulterous disposition. Opportunity may be proven by showing that your spouse was seen entering the paramour's apartment at 11 P.M. and not coming out until 8 A.M. the following morning and that they were alone. If you can only prove disposition but not opportunity, the courts may not allow your divorce because the court may reason that it is just mere speculation. The same is true if you only show that there was opportunity, but cannot prove disposition. When you think about it, this seems to make sense.�

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NAMING THE CO-RESPONDENT�

Sometimes known as a paramour, the co-respondent is the person whom you charge as having committed adultery with your spouse. The co-respondent has the right to hire a lawyer and file an answer to your complaint. Naming co-respondents can get sticky, particularly if your facts are incorrect. You might be damaging the reputation of an innocent person.

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THE ADULTERERS�

Adulterers are not equal under the blanket of the law. In New Jersey, adultery may impact custody if the adultery is proven to have harmed or impaired the children. Adultery does not necessarily affect alimony awards in New Jersey. It will, however, be a factor for consideration in awarding alimony.

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CONDONATION

Generally, if you knew your spouse committed adultery but continued to live and cohabit with your spouse, then adultery cannot be used as a ground. Once you resume marital relations, after you learned of the adulterous act, the courts feel that you have forgiven, or "condoned," the act. But, if your spouse starts having affairs again, you can then sue on grounds of adultery. Or, if your spouse has had several affairs and you knew of and condoned only one, you may file on adultery regarding the newly discovered affairs.�

In New Jersey, however, condonation does not necessarily bar the action for divorce; it now only a "factor for consideration."�

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CRIMES�

If your spouse has been convicted-not simply charged-of a crime, that is a ground for divorce in New Jersey. The conviction can be for either a misdemeanor or a felony in any state, and the spouse has to serve at least 18 months of a minimum three-year sentence in a penitentiary or penal institution.�

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INSANITY�

Your spouse must be judged permanently and incurably insane and be confined in an institution or a hospital for a minimum of 24 four months before filing. To prove insanity, two or more psychiatrists are needed to testify that your spouse is incurable and that there is no hope of recovery. The court will appoint an attorney to act in the defense of your spouse whom you purport to be insane. These costs are usually borne by you.�

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BIGAMY

Knowingly entering into a bigamous marriage is also a ground for divorce.

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VOLUNTARY SEPARATION NO- FAULT DIVORCE IN New Jersey

The State of New Jersey has a "no fault" divorce known as voluntary separation. It usually means that you and your spouse have separated after mutually and voluntarily agreeing that you no longer wish to live together as husband and wife and that there is no hope for a reconciliation. Your spouse cannot threaten or blackmail you into leaving; you separate because you both want to. To get a divorce on this ground you have to be separated (not living under the same roof) without interruption (not even one night) without cohabitation (not a single incident of sexual intercourse) for 18 months and there is no hope of reconciliation. Remember though, if this is not a mutual and voluntary situation you will have to use another ground to get a divorce.

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