Grounds for Divorce
Irretrievable breakdown of the relationship for more than six months – No-Fault Divorce
Spouses may be granted a divorce in a timely fashion, provided that one party has stated under oath that the relationship between husband and wife has been irretrievably broken for a period of at least six months.
Note: The one limitation is that a judgment of divorce cannot be granted unless and until the economic issues relating to equitable distribution (property), support (spousal and child), professional fees (counsel and experts) and expenses and custody and visitation issues are resolved by the parties, or determined by the court.
Other than in situations where significant domestic violence can be shown, the use of one of the ‘fault’ grounds below will serve no beneficial purpose and may make the pursuit of the divorce more time consuming, more costly and, sometimes, more difficult to obtain.
Abandonment for one or more years
Physical abandonment means that your spouse has left without justification or your consent and has not offered in good faith to return.
Constructive abandonment, an abandonment for the purposes of establishing grounds for divorce, means that your spouse has refused to have sexual relations for more than one year without a physical or mental reason for doing so.
This ground for divorce is seldom used. Even if your spouse agrees not to contest your divorce action, proof of adultery is frequently difficult. You will need witnesses, as your testimony alone is not legally sufficient against your spouse. Adultery is usually shown by circumstantial evidence in that the spouse had the opportunity, inclination, and intention to engage in sex with another within the last five years. Courts will frequently not grant divorces where there are mutual acts of adultery.
Having sexual relations with your spouse after the discovery of the adultery is interpreted as forgiveness (legally known as condonation) and will bar the granting of a divorce, if proved.
Cruel and Inhuman Treatment
Physical or mental cruelty that has had such a serious effect on your physical or mental health that it is unsafe or unwise to continue the marriage. Cruel and inhuman treatment can involve either physical or mental abuse. If your marriage is long-term, you will have to provide more examples of such treatment than if you have been married a short time.
Imprisonment for three or more years
You cannot bring this action until your spouse has actually spent three or more years in prison.
Living apart pursuant to a Separation Agreement
Provided that you have lived apart for a year after signing your separation agreement and pursuant to the terms of such agreement, you will be able to sue for divorce based on this “no-fault” ground. (Proof of filing of the Agreement must be submitted when the divorce is filed)
Living apart pursuant to a Separation Decree
(a court judgment)
Provided that you have lived apart for a year pursuant to the terms of Judgment of Separation you may secure a divorce based upon that fact alone. In order to obtain the Judgment of Separation, you must establish a ground for divorce. Grounds are the fault grounds listed above, except that abandonment may be for less than a year.
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