A fellow of the American Academy of Matrimonial Lawyers, New Jersey family lawyer Allison C. Williams is a wealth of information on the subject of divorce and family law. In this podcast, she answers some of the many questions related to causes of action for divorce in New Jersey.
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Hosted by: Diana Shepherd, Editorial Director, Divorce Magazine
Guest speaker: Allison C. Williams
Allison C. Williams, Esq., is the founder and owner of the Williams Law Group, LLC, with offices in Short Hills, New Jersey. She is a Fellow of the American Academy of Matrimonial Lawyers and is Certified by the Supreme Court of New Jersey as a Matrimonial Law Attorney. Ms. Williams is a member of the New Jersey Board on Attorney Certification (NJBAC) – Matrimonial Committee, a New Jersey Supreme Court committee that determines eligibility of candidates to be certified as a recognized practitioner in the field of matrimonial law. She practices exclusively in the area of matrimonial and family law, with an emphasis on complex Child Welfare matters, including representation of parents in DYFS/DCPP matters, representation of resource family parents, and consultation to matrimonial counsel regarding DCPP investigations and related issues.
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Read the Transcript of this Podcast “Causes of Action for Divorce” Below.
Can you tell us what a Cause of Action is in terms of divorce?
A Cause of Action is essentially your reason for getting a divorce. Any time that you file a lawsuit, you have to plead a Cause of Action, you have to identify what entitles you to relief under a statute. Long ago our society disagreed with divorce as a general rule, and so we placed a lot of requirements in place for people to get divorced, a lot of those were grounded in religious doctrines, moral reasons, and even financial considerations for our society. In order to get divorced you had to actually prove the right to be divorced, and that was your Cause of Action. It was something that essentially had happened in your marital relationship that made it unconscionable for you to be forced to remain in the marriage, despite the fact that our society would favor it as a general rule.
What must happen in a divorce for a party to file for Irreconcilable Differences?
Our society favored marriages as a societal construct and so as we have changed as a society, we’ve really grown to accept the shift in relationships to allow the freedom of association above all else. So we no longer insist upon the requirements of a Cause of Action for divorce in order to have the right to get divorced. Now it’s almost a presumption, if you want a divorce you are going to have one. And once you filed based on irreconcilable differences, that’s essentially telling the court that you and your spouse just don’t see eye to eye anymore and you want to end the relationship. You have to plead that that happened over a period of six consecutive months that you have felt that you’ve had differences and that it’s not likely that you’re going to be able to reconcile.
But there’s still some requirements for you getting a divorce, you do have to show that this was a consistent, persistent problem for six months. Even though you have to show that there’s no hope for reconciliation, we do not currently require that you show that you went to marriage counseling, but of course that would help if it was ever an issue in dispute that you’re entitled to get divorced.
What effect does filing for divorce based on extreme cruelty have on a child custody case?
Extreme cruelty is the most common ground for divorce that we plead before our state New Jersey allowed parties to divorce based on irreconcilable differences. Extreme cruelty is essentially the claim that somebody is at fault for the divorce, and they’ve done things that have injured the spouse. But what often happens is attorneys will plead what has happened in the marriage and harmed the spouse as also demonstrating that it would have harmed the children, and thus would impair one party’s ability to be a fit parent. Typically, we have several examples of how we use extreme cruelty in custody cases. First, we will often see litigants claim that there’s a list of mental health issues that have adversely impacted the marriage as well as the children such as depression or anxiety, and those sorts of things will often cause withdrawals from engagement with the children. Sometimes it can even be something more severe like schizophrenia or bipolar disorder.
One of the most common allegations of domestic or extreme cruelty is domestic violence, and with domestic violence we have in our state the prevention of domestic violence act, which includes legislative findings that actually say that domestic violence against a spouse has a correlation with the negative impact on children. If you’re claiming domestic violence, that of course would give you a presumption that one parent is more fit to be the custodial parent and that would be the non-abusing spouse.
We often see addiction raised as a concern for parenting including addiction to any number of substances, alcohol, and drugs. It could be behavior patterns such as gambling or pornography, or even addictions to some things that are more benign like work or food. When we start to see addictive behavior, we often will see that pattern of conduct making it hard for a parent to engage appropriately with the children as well as to exercise good judgment with the children. We see that cause of action, that addiction is one of the reasons why a parent believes that the other parent is not fit to have access to the children.
If a person accuses their spouse of committing adultery, can they still file for a divorce if they have no proof of the adultery?
Adultery in New Jersey is plead and proven in two different ways. First in the divorce complaint, you can file for a cause of action of adultery, and that means that you have identified the person with whom your spouse has committed adultery, that person is referred to as the co-respondent. You have to name the co-respondent in the divorce complaint, and you have to serve them with a copy of the divorce complaint, and they too must account for their behavior with the spouse. Now of course, the difficulty with that is, in circumstances as you said, when you don’t know who that person is and the litigant who wants to get divorced, very much wants to prove that their spouse committed adultery.
If you don’t have the concrete proof and you can’t identify the person, you can also file based on extreme cruelty and just identify that the act of cruelty was committing adultery. Once you do that you don’t have the same stringent requirement of bringing in the third party who committed adultery with your spouse, but you do still have the requirement of proof if the issue ever got to the point of a trial.
Now in New Jersey, 98% of our cases are settled, they do not actually go before a judge for a trial, so the question is often raised, well if I plead this, do I actually have to prove in the course of a trial? Most of the time when people plead in their divorce complaint, something has happened, we don’t normally litigate the history of the marriage and the reasons for the breakdown of the marriage. We usually are focused on things such as support and custody, assets, liabilities, things that has accumulated that need to be divided between the parties. But if at some point you don’t have your case settled and you’d have to go before a judge, yes you will have to prove whatever you have plead as your cause of action. If you have plead extreme cruelty and you said that adultery was the reason why your spouse was cruel to you, and you are entitled to a divorce action, you must prove adultery in some form, even if you don’t have the name of the person who was involved in the adultery.
What is the difference between divorce and separation in New Jersey?
A divorce is a dissolution of the bonds of matrimony. What that means is that you’re no longer legally entangled with your spouse and cannot be called upon by society to answer for his or her actions, nor are you entitled by law to his or her earnings, assets, or accumulations.
A separation, a legal separation, is not an entity in New Jersey.
That means if someone were to come into my office and say I want a legal separation, I would have to tell them there is no such thing in New Jersey. The closest thing that we have to a legal separation in our state is called, a divorce from bed and board. A divorce from bed and board accomplishes the exact same thing as a divorce except the bonds of matrimony remain in place. So, one would file a divorce complaint and go through the same process whether it is by divorce from bed and board or an absolute divorce, which is what most people think of as divorce, and you would ultimately reach a resolution of all issues.
As I noted earlier, you don’t have trials in New Jersey except for a very small percentage of cases.
But you would settle your case draw up your terms by which you would live, and that would include all the things that you would address in a divorce action such as child custody, support for the children, support for spouses, distribution of assets, and debt and allocation of expenses and council fees. You would address all of those issues whether it’s by divorce or by divorce from bed and board, however, you’re still technically and legally married.
If you wanted to remarry, you would have to convert your divorce from bed and board into an absolute divorce. That can be done by simply filing a motion or if you have agreed with your spouse and advance as to when you’re going to do that, you would file a consent order with the court.
What’s the significance of choosing a Cause of Action? Is anyone better than another?
It’s very rare for divorce cases to focus on the “why” of the divorce. Meaning, most judges respect that you have the freedom to end your marital relationship if you choose to and the court is no longer going to hold two people in marriage together simply because of a societal construct that they shouldn’t get divorced. The cause of action really does not come up a whole lot in the divorce action. Most times judges don’t even read the pleadings that tell the court the reason why you’re getting a divorce. This won’t happen until you have settled your case, and are putting through an uncontested divorce or at a trial where you would actually be testifying about the reasons why you’re entitled to a divorce.
It becomes almost perfunctory what you claim is the reason for your divorce. The few times it does matter however, is when the facts leading to the divorce have some bearing upon the substance of issues in your case. If you allege something for instance as like your spouse having an addiction and that that cause the breakdown of your marriage, you may also claim that they’re not capable of parenting, so it should affect child custody. Or you could claim that if your spouse committed adultery, if that was your cause of action and your allegation is that by virtue of committing adultery, they took money from the marital pot and put it into their extra marital relationship rather than spending it on yourself and the children. Then, it might be relevant to the distribution of assets and debt in the marriage.
But in those circumstances, it’s really all about what impact the cause of action had on the issues in the case like support of the parties, child custody, and distribution of assets and debt. The emotional pain that you suffered really does not have much, if any, impact on the resolution of your divorce. Unless it has some impact on you that you’re seeking to have economically recompense. If you have suffered a mental breakdown as a result of the emotional stress of your marital relationship, you might be able to file a separate cause of action against your spouse for personal injury. That would also be dealt with in the course of your divorce and you would seek to have moneys paid to you by virtue of your needing to have medical bills paid, mental health bills paid, and perhaps ongoing treatment. But outside of those very limited circumstances, most times the divorce action is about the substance of the case and not so much about the cause of action.
Allison C. Williams is a matrimonial and family law attorney serving Short Hills New Jersey. Her practice places an emphasis on complex child welfare matters.www.familylawyersnewjersey.com