Written By: Lawrence R. Jones, Esq.

An often misunderstood part of the legal process when people seek a divorce in New Jersey is the “cause of action” component within the complaint for divorce. When filing for divorce in New Jersey, a party must tell the court the “cause” for the divorce within the first legal papers filed with

the court. Thereafter, the other party may submit an “answer” to that cause, and may also file his/her own “counterclaim” seeking a different “cause” for the divorce. In this back and forth manner, many litigants think marital fault will have some effect on the outcome of the divorce litigation, and that they therefore have to write terrible things about their spouse to get a better division of property or support in New Jersey. This is generally not true. Unknown to most litigants is the fact that most divorce cases in New Jersey never go to trial; about 95 percent settle and the “cause”of action is often unlikely to be heavily discussed, negotiated, or litigated during the divorce process.

At the present time, the most common causes of action for divorce include irreconcilable differences, extreme cruelty, 18-month separation, and adultery.

The term “Eighteen Month Separation” requires that a litigant seeking a divorce under this specific cause of action live separately from his or her spouse for 18 consecutive months. However, if a litigant proceeds under a different cause of action, such as irreconcilable differences or extreme cruelty, then there is no required minimum time period of separation.

The term “Extreme Cruelty” is also not what it appears. One does not have to allege or prove that the spouse is a sadistic monster and people routinely get divorced on minimal extreme cruelty grounds such as inappropriate language, lack of attentiveness, lack of respect and stress-inducing conduct. In light of the reality that an extreme cruelty complaint does not require a showing of horrific conduct, it is puzzling that many litigants still file complaints containing long lists of every “bad” act the other party has allegedly committed during the marriage. These lists are often irrelevant to the outcome of the divorce litigation.

Moreover, the allegations of extreme cruelty and adultery are often largely irrelevant to the issues in a case. While a person’s conduct may potentially be relevant in a disputed custody case or a marital assault claim, marital fault is largely irrelevant in financial issues such as alimony, as noted in Mani v. Mani, 183 N.J. 70 (2005), or equitable distribution, as noted in Chalmers v. Chalmers, 65 N.J. 186 (1974).

It is also likely that when a divorce litigant starts a case with a series of dirty allegations about a spouse’s conduct over the course of a marriage, the other party may not be interested in sitting down for civilized settlement talks. Rather, the other party becomes more focused on defending his or her “honor” and writing an equally lengthy and vicious counterclaim.

The irreconcilable differences cause of action allows many parties to complete their divorces without having to air the “dirty laundry” of their private lives and leaves some dignity intact for both parties to begin their new lives. The Superior Court of New Jersey encourages divorcing spouses to mediate their cases, to act civilly toward each other, and to allow a peaceful end to a marriage on the grounds of irreconcilable differences. In all matters of divorce, including causes of action, an experienced matrimonial lawyer can help guide a client toward amicable resolution while saving money in the process as the cost of a trial is often prohibitive.