irreconcilable differences

In our effort to provide the reader of this blog all of the serious (ahem) family law news we can find, a top source for family law news, the New York Daily news provided some fodder for this blog this weekend.  While I suspect some of you are waiting for us to discuss the Justin Bieber and Selena Gomez break-up, the story at issue is not that one, but the one involving a woman in England who divorced her husband because he wouldn’t play Fifty Shades of Grey.

In this case, it was reported that the woman, a successful banker earning $600,000 per year alleged that her attempt to jump start their love life with author E.L. James’s provocative novel backfired when her husband accused her of “unreasonable behavior.”  The husband allegedly blamed the breakdown of their marriage on that book.

Whether or not this book is causing similar marital distress, or perhaps the opposite, in New Jersey is unknown.  Since most divorce Complaints in New Jersey are filed citing irreconcilable differences, a no-fault ground, we don’t hear the same level of the detail regarding why a couple is divorcing.  This was not the case 7-8 years ago and before, when irreconcilable differences was not available and most cases proceeded on the fault ground of "extreme cruelty."  Back in those days, parties had to allegedly prove the reasons why the conduct of the other made it unreasonable and improper to require them to continue to live together as husband and wife.  Now courts really did not care what was really in the Complaint and the only testimony at a final hearing was testimony that the allegations in the Complaint were true.  That said, depending on how angry people were, you could get a few short paragraphs, or you could get an Encyclopedia Britannica of allegations. 

Since it was largely irrelevant, only served to raise and more costly and time consuming than an irreconcilable differences Complaint, the system is better for us not having to file cruelty complaints in most cases (we may still file them if custody is an issue and/or there is a tort claim being filed too).  That said, from a lawyer’s perspective, the cruelty complaints and counterclaims often afforded you, early on, to learn the true dynamic of the relationship in a way that better enabled you to strategize and otherwise help your client. Still and all, divorcing your spouse for not acting out what is in a book is a new one for me.


Eric Solotoff is the editor of the New Jersey Family Legal Blog and the Co-Chair of the Family Law Practice Group of Fox Rothschild LLP. Certified by the Supreme Court of New Jersey as a Matrimonial Lawyer and a Fellow of the American Academy of Matrimonial Attorneys, Eric practices in Fox Rothschild’s Roseland, New Jersey office though he practices throughout New Jersey. You can reach Eric at (973)994-7501, or

It goes without saying that it takes two people to agree to get married, making vows "til death do us part."  Those vows, spoken with all sincerity, good intention, and probably with a hopeful belief that the words will be literally followed, somehow fall by the wayside when one party decides to divorce. And while it takes two to get married, it only takes one party to get divorced, especially in the era of "no-fault" divorce. 

Many if not most people feel a certain sadness if not devastation over a divorce.  However, it is often a mutual decision, or at least one that both parties ultimately accept.  It is quite another thing when one party simply does not or cannot accept the divorce.  It is quite a somber experience telling a client that there is nothing that they can do if the other spouse does not want to remain married.  While we often suggest that that person suggest marriage counseling to their spouse, it cannot be compelled.

As I have blogged before, some people in this situation may try to delay the process, essentially delaying the inevitable.  This often drives up the cost of the process.  One wonder weather it also prolongs if not worsens their emotional suffering. While I am not suggesting that people give up on their marriage, when the end is inevitable and they can do nothing to stop it, perhaps it is best to try to move the process along in an orderly way so that they can get on with their life and, if necessary, start the healing.

On June 15, 2010, the New York Times reported on several proposed new laws affecting family law practice in New York.  One was to adopt no-fault divorce, which has long been proposed and long been opposed. At present, one still must prove fault grounds for divorce in order to get a divorce.  This has lead to protracted litigation that some have called cruel and unnecessary.  As the no-fault bill has finally passed the Senate, there is an expectation that it will also pass the assembly.

New Jersey has had no fault divorce for many years, though in actuality, it has really been prevalent for the last 4 years or so when "irreconcilable differences" were added as a cause of action.  Prior to that, the only no-fault ground was 18 month separation.  As most people did not want to wait 18 months, the majority of divorce complaint alleged "extreme cruelty" that made it unreasonable and improper to require the parties to remain married.  In many ways this was somewhat bogus because there was rarely any real testimony about the allegations other than to re-affirm that what was in the complaint was true and correct and if asked to testify about it at length, the testimony would be substantially the same. 

That said, despite telling parties not to worry about it and not to get upset about it, they almost always did (not to mention that there was no a public record of very private gripes).  As such, the other party would then file a counterclaim alleging their own version of "cruelty."  Thankfully, irreconcilable differences has in most cases done away with the need to go through the financial and emotional expense of this type of Complaint (though there are times when it is still necessary for other reasons). 

The only thing that I miss as a divorce lawyer in not reviewing the cruelty complaint and counterclaim is that it may take a little longer to really understand the dynamic between the parties that often would come out loud and clear in their initial pleadings.  That said, no-fault is still better in most cases.

Mark Ashton, a partner in our Exton (Chester County), Pennsylvania office and the editor of our Pennsylvania Family Law Blog, wrote an excellent post entitled "I Want You To Show How Awful She Is", on that blog.

To read the full post, click here.

NJ allows people to seek a divorce on both fault and no fault grounds.  The fault only gets someone a divorce.  Moreover, even before irreconcilable differences was added as a no fault cause of action a few years ago, and we often proceeded on "extreme cruelty" grounds, no one, other than the litigant’s cared about the cause of action.  In fact, at the final hearing, when a party testified about the cause of action, the typical questions were to ask whether the contents of the complaint were true, if you had to testify about them on that day, whether your testimony would be substantially the same, and whether it was unreasonable and improper to require the people remain married.

Moreover, as noted in prior posts, the Supreme Court confirmed in Mani v. Mani that fault does not matter in divorce cases except in extreme cases (i.e. the attempted murder of a spouse.)  That said, like Mark noted in his post, if marital assets were used to further the affair, those assets can be recovered. 

Character does not matter as much as credibility, which is more often affected by someone’s conduct during the litigation or just before it if there was divorce planning, than who they had an affair with or how they treated their spouse during the marriage.

Following up on our recent blog post addressing how marital fault is not of particular relevance in New Jersey divorce litigation, a front page news story in the August 3, 2008 Long Island edition of Newsday entitled Lawmakers are Split on Divorce focused on New York as the only state without a no-fault divorce option. The article notes that despite support from many New York legislators to develop a no-fault option in New York and the fact that many ordinary couples cannot afford the nasty drawn out divorce proceedings resulting from New York’s archaic law, such laws still face resistance from the Catholic Church and the National Organization for Women-New York State.

A no-fault divorce bill recently introduced to the New York State Senate was not even voted on during the most recent session, but expects to be reintroduced next year for consideration. If enacted, the bill would allow couples to divorce without assigning fault to either party when a marriage is irretrievably broken for at least six months. Prior to obtaining a no-fault divorce, the parties would be required to resolve beforehand issues including equitable distribution, spousal support, child support, legal and other fees, child custody, and visitation.

This proposal would provide couples with an option similar to that seen in New Jersey, which allows parties to obtain a divorce without unleashing the sort of embarrassing testimony revealed during Christie Brinkley’s battle with her ex-husband, Peter Cook. In a similar fashion to New Jersey, the fault grounds would still be available. Based on what has transpired in New Jersey, however, it is likely that parties would more likely turn to the no-fault option as a means for achieving the same end as they previously achieved via fault grounds – namely, a divorce.

It is most certainly time for New York lawmakers to dust off its divorce legislation and provide couples with what is ideally a more amiable and cost effective option for ending a marriage.

EDITORS NOTE:  Since I was a college student in Albany in the 1980s, and probably even before then, the issue of bringing no fault divorce to New York was raised, but never passed. 

Further, while New Jersey seems to be cited as beacon, the irreconcilable differences option in New Jersey is less than two years old. Prior to that, New Jersey’s no-fault option required couples to live separate and apart for 18 months with no reasonable prospect of reconciliation.  Since most people did not want to wait, the majority of cases were filed under the fault ground of "extreme mental cruelty."  Aside from airing dirty laundry and causing anger and anguish, it really had little effect.  The reason for this is that at the divorce hearing, the party was asked if the allegations were correct when the Complaint was filed and  if they had to testify about them, their testimony would be substantially the same.  Put another way, at the end of the day, it didn’t really matter and the "fault" ground caused unnecessary upset.  Eric Solotoff