Hiring a Lawyer for a Simple, No Fault Divorce in New Jersey
Article by Daniel A. Levy, Esq.
It is not uncommon that a client contacts me and says that they and their spouse are in agreement that they should get divorced. They ask, how much to get a simple divorce? What is a no fault divorce? We were just married a few months ago, can we just get an annulment? Understandably, they also want to know how quickly they can get divorced and what the process is. Most clients don’t know exactly what a no fault divorce is compared with an annulment and they certainly wouldn’t know if they are even eligible for these types of divorce actions. Below I discuss some of the basic terminology, the basic process in a very simply divorce case, and how an attorney can affordably assist you if you are interested in filing for divorce.
What is a no fault divorce/simple divorce/annulment?
I want to start with some basics on the terminology for New Jersey divorce cases. First and foremost, there is no such thing – legally speaking – as a “simple divorce”. Some cases are simple, some are complicated, but no one can ever file for a “simple divorce” because there is no such thing as a “simple divorce” under New Jersey law. But let me take a step back for a moment. A client should understand that a divorce case is essentially a lawsuit – one spouse files a Complaint (that is the plaintiff) and essentially sues the other spouse (the defendant) for divorce. As an aside, it doesn’t really matter who the plaintiff is and who the defendant is, for the most part, unlike in a civil lawsuit or a criminal case. The plaintiff needs to state in the Complaint why they are entitled to a divorce. One of those reasons allowed under New Jersey law is a No Fault Divorce, pursuant to N.J.S.A. 2A:34-2(d). A “no fault divorce” means that no one needs to demonstrate that the other spouse was at fault for anything. All that must be shown is that the husband and wife lived apart from each other for at least 18 months, consecutively. If that is not the case, then the plaintiff must state in the Complaint one of the “fault” grounds for divorce.
What is almost always included in the Complaint is the allegation that there are irreconcilable differences, pursuant to N.J.S.A. 2A:34-2(i). Technically, this is a “fault” ground, but in reality it’s very similar to a no fault divorce. The court must only be satisfied that the husband and wife are experiencing irreconcilable differences which have caused a breakdown of the marriage for at least 6 months and that there is no reasonable prospect of reconciliation. So if a couple hasn’t actually separated but they want a divorce, this is generally the way that it’s done.
There are a whole host of “fault” grounds under the statute as well: Extreme cruelty, adultery, desertion, habitual intoxication, imprisonment, institutionalization, and deviant sexual behavior. Here, the plaintiff would have to actually prove that these “faults” actually occurred, which is often difficult to do. And since it is almost always the same result if you get divorced under these fault grounds vs. the irreconcilable differences, it is unusual for the plaintiff to allege these things in the complaint (remember, these things are public records and get filed with the court, so while it may sound like a good idea to accuse your spouse, in writing, that they are a crazy, violent drug addict who is sleeping around town, that’s generally not counterproductive).
An annulment is not a divorce at all and it’s addressed in a different part of the statute, N.J.S.A. 2A:34-1. An annulment is not the same thing as an annulment in the church/religious sense. Basically, an annulment is for cases where the marriage should be completely voided, as if it never occurred. This DOES NOT mean that spouses can get an annulment if they change their minds about the marriage shortly after getting married – that would require a divorce. Rather, it’s reserved for cases when one spouse was not legally able to marry (too young, too closely related, already married, too intoxicated at the time, not mentally fit, etc.). It is also available if one party was literally forced into the marriage or if there was a fraud regarding the essential elements of the marriage (like using the marriage only for citizenship, failing to disclose infertility, etc.). Annulments are extremely rare and often very difficult to prove.
What is the process for a simple divorce?
OK, I know I said that there is no such thing as a “simple divorce”, but I want to just outline the basic process of a simple divorce case that is very simple in its terms. The first thing that would happen is the initial meeting with a lawyer (more on that below). The plaintiff must sign certain court documents, including the Complaint and certain documentation outlining some basic information about the plaintiff and the case. The documents would get filed with the court and a docket number is assigned. The case is also assigned to a specific judge. If the case is truly simple, the other spouse would have no objection to the court dissolving the marriage. The defendant would need to receive the Summons and Complaint and sign a paper that says that he or she has no objection to the court dissolving the marriage for the reasons stated in the Complaint and that he or she will not enter an appearance in the case. The documentation would then be filed with the court and the plaintiff would request a hearing with the judge. At that hearing, the judge signs an order dissolving the marriage, provided that the court is satisfied that the plaintiff’s testimony establishes a right to divorce for the reasons stated in the Complaint. When all is said and done, and assuming that everything goes smoothly without a hitch, the entire process can be completed in about 10 weeks, give or take.
In all legal matters, it is usually best to consult with an attorney because a lawyer will have much more experience and better judgment than a non-lawyer; they can listen, advise, and take appropriate action on the client’s behalf. But more specifically for this type of case, a divorce lawyer can tell you whether your case truly is a simple divorce matter or whether there are more complicated issues that need to be resolved with the courts. There may be issues with children, alimony, equitable distribution of property including the marital home, pension/retirement accounts, etc. Just because the couple agrees that they need to get divorced, does not mean the case is necessarily simple. Right in the initial meeting a divorce attorney could hash out these issues with you. Also, you will want a lawyer to make sure that your rights are adequately protected. Finally, a lawyer can make sure that everything is done quickly, correctly, and smoothly, with no worry or effort on the client’s part. The piece of mind that goes along with hiring competent counsel is a huge benefit. And if the case truly is a simple case for divorce, clients are generally pleased to hear that our rates are very affordable and that they will still get personalized attention from the attorney.