When I see a new client, he or she often spends much time telling me about all of the offenses that his or her spouse has committed throughout the marriage. Couples divorce for many reasons, and when it comes to family cases, no two cases are alike. Yet at the end of the day, the issue of why a couple is getting a divorce may not have a significant impact on the case and indeed, can often fan the flames of animosity. Within the last several years, New Jersey became one of many states which allow a divorce based upon irreconcilable differences, which is to say that neither party is at fault; it is just that the marriage is no longer viable. This change was applauded by the legal community because we know that a complaint which contains allegations of a spouse’s fault for the break up often make a bad situation worse. Prior to that, to proceed on a no-fault divorce, the parties had to be separated for 18 months (that ground still remains to be used where applicable).
New clients often initially want to file for divorce under the ground of extreme cruelty, which is also a cause of action allowed under our laws, and which essentially alleges that the marriage has failed as a direct result of the bad actions of one spouse. Certainly, there are instances in which the behaviors of a spouse can be relevant to issues of custody. For example, a situation in which there is domestic violence, or substance abuse can have a profound effect on children and be important when addressing the children’s best interests. Also, in the rare instance when a spouse’s actions have a result of dissipating assets, or causing actual harm to the spouse or the assets of the marriage, this may have an effect on equitable distribution . Fault essentially has no place in the calculation of support.
For the vast majority of cases, the reasons that a couple divorces will have little or no effect on the distribution of assets or the outcome of a custody dispute. When there is a custody dispute, the evaluator will speak to both parents as well as any other individuals who have relevant information. The parents will be able to inform the evaluator as well as the judge later on of any marital behaviors that may influence a custody and parenting time determination. The allegations, or lack thereof, in a divorce complaint, does not preclude a litigant from expressing concerns in a custody case. A judge and evaluator will hear all relevant facts.
In the case of equitable distribution, it is a rare occurrence that the reasons for the divorce will have any effect on how the assets are distributed between the litigants. So why fan the flames? In today’s environment, couples want to work with the counsel in order to resolve their cases ( when possible) in an expeditious fashion. They want to maximize the marital estate in order to preserve the assets which have taken such a beating this past two years. So unless it becomes truly relevant, and there is a distinct advantage, why file a complaint in which there are allegations of extreme cruelty?