New Jersey Divorce Law
explains the subject of divorce law in New Jersey. It is designed to
provide general legal information and is not a substitute for legal advice
provided by an attorney who is a member of the New Jersey Bar. However, if your
divorce is uncontested, meaning there are no conflicts concerning child custody,
child support, alimony, and/or martial property, you should be able to represent
yourself as a pro se litigant.
Same State, Different Address
Proof of Residency
Resident vs. Non-resident
How to Establish Residency
Divorce, Separation and Annulment
Grounds for Divorce
Waiting Periods for Divorce
How To Prove Adultery
Naming the Co-Respondent
Under New Jersey
Law, you have the right to represent yourself in all legal cases, including
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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In order to start the divorce process you must file a complaint in the Superior court where you or your spouse lives. In your complaint or at the hearing, you will have to meet the residency requirement for the ground you specified above. Divorce laws apply only to the residents of a state, and each state has its own residency requirements. For the ground of no-fault based on a separation for 18 months, the residency requirement is one year in New Jersey. If the grounds for divorce is adultery you can file immediately without living in New Jersey for a year. The law absolutely requires that you or your spouse has been a resident for the stated period of time immediately prior to and at the time that you file for a divorce. For example, you cannot have lived in New Jersey for six months before moving to Nebraska for another six months and then come back to Virginia to file for a divorce. However, after you have filed, you can move anywhere in the world.
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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 addresses, but you should be prepared to prove where you lived during the separation in the final hearing.
Your residency is
substantiated by your affidavit. But cases have been dismissed and even
overturned because of improper proof of residency. To be safe, bring copies of
your leases with you to court if you have moved a lot.
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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.
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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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 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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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:
no-fault: separation for 18 consecutive months (must be living in separate residences);
institutionalization for mental illness for at least 24 consecutive months;
deviant sexual conduct;
imprisonment for at least 18 months;
adultery (no time limit)
willful and continued desertion for at least 12 months;
habitual drunkenness or voluntary addiction;
extreme cruelty, either bodily or mental.
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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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.
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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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.
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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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.
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."
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.
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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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.
The New Jersey courts may grant a limited divorce even though you are seeking an absolute divorce. The courts also may decree these divorces forever or for a limited time only. And finally, New Jersey's limited divorces may be revoked by the courts at any time upon the joint applications of the parties to be discharged. In such cases, you return to the state of being legally married.
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