Understanding Desertion in New Jersey Divorce: What It Means and How It Impacts Your Case

Divorce can be a challenging process, especially when the grounds for divorce are unclear or contested. In New Jersey, one of the recognized grounds for divorce is desertion, also known as abandonment. Desertion occurs when one spouse intentionally leaves the other without justification or consent, and the absence lasts for a specific period of time. Understanding what constitutes desertion and how it impacts your divorce case is crucial if you’re considering ending your marriage on these grounds.

In this blog, we’ll explore the legal definition of desertion in New Jersey, how it affects your ability to file for divorce, and why working with a divorce lawyer is essential when pursuing this option.

What is Desertion in a New Jersey Divorce?

In the context of divorce, desertion refers to a situation where one spouse leaves the other with the intention of ending the marriage. Under New Jersey law, desertion is considered a fault-based ground for divorce, which means that one spouse must prove that the other intentionally abandoned the marriage.

For desertion to be valid grounds for divorce, the following criteria must be met:

• Intent to Abandon: The spouse who left must have done so with the intent to end the marriage.

• No Justifiable Reason: The abandonment must be without the consent of the remaining spouse and without a justifiable cause.

• Separation Period: The desertion must last for at least 12 consecutive months.

There are two types of desertion recognized in New Jersey divorce cases: actual desertion and constructive desertion. Both can serve as grounds for divorce but differ in how they occur.

Actual Desertion vs. Constructive Desertion

1. Actual Desertion

Actual desertion occurs when one spouse physically leaves the marital home with the intent of abandoning the other spouse. This form of desertion is straightforward, as it involves a physical separation where the abandoning spouse refuses to return to the marriage.

Examples of actual desertion include:

• Moving out of the marital home without the other spouse’s agreement.
• Failing to provide financial support after leaving.
• Refusing to communicate or participate in the marriage.

2. Constructive Desertion

Constructive desertion, on the other hand, refers to situations where one spouse forces the other to leave due to intolerable or abusive behavior. In this case, the spouse who remains in the marital home may be the one who files for divorce, claiming that the other’s behavior amounted to abandonment.

Examples of constructive desertion include:

• Emotional or physical abuse that makes it impossible for the spouse to stay in the marriage.
• Chronic neglect or refusal to fulfill marital duties.

Both actual and constructive desertion are legally valid grounds for divorce in New Jersey, but proving these claims requires strong evidence and careful legal strategy, which is why a family law attorney is crucial in these cases.

Filing for Divorce on Grounds of Desertion

If you believe that your spouse has deserted you, filing for divorce on this basis requires meeting specific legal requirements. Here’s how the process typically works in New Jersey:

1. Establishing the Timeline

As mentioned earlier, desertion must last for at least 12 consecutive months before it can be used as grounds for divorce in New Jersey. If your spouse returns at any point during this period, the desertion clock resets, and you may need to consider alternative grounds for divorce.

2. Proving Desertion

To successfully file for divorce based on desertion, you’ll need to prove that your spouse intentionally abandoned the marriage. This involves gathering evidence, such as:

• Witness testimony from friends or family members who were aware of the abandonment.
• Financial records showing a lack of support from the abandoning spouse.
• Communications (or lack thereof) that demonstrate an intent to end the marriage.

In cases of constructive desertion, you may also need to provide evidence of abuse or neglect, such as medical records, police reports, or documented instances of harmful behavior.

3. Filing the Divorce Petition

Once you’ve gathered sufficient evidence, your divorce lawyer will help you file the divorce petition with the appropriate family court. The petition will outline the grounds for divorce (desertion) and include the necessary documentation to support your claim.

The Impact of Desertion on Divorce Proceedings

Filing for divorce on the grounds of desertion can impact several aspects of your case, including:

1. Alimony

In New Jersey, the court considers fault when determining alimony. If your spouse is found to have deserted you without just cause, this could influence the court’s decision on whether you are entitled to spousal support and the amount you may receive.

2. Child Custody

Desertion may also play a role in child custody arrangements. If one parent abandoned the family, the court may view this negatively when determining custody. However, New Jersey courts prioritize the best interests of the child, so the final decision will depend on various factors, including each parent’s ability to provide a stable environment.

3. Division of Assets

New Jersey is an equitable distribution state, meaning that marital property is divided fairly but not necessarily equally. If desertion is a factor in your divorce, it may influence how the court divides assets, particularly if the abandoning spouse failed to contribute financially or neglected their marital duties.

Why You Need a Skilled Divorce Lawyer for Desertion Cases

Navigating the complexities of a desertion-based divorce requires the expertise of a skilled divorce lawyer. Here’s why having legal representation is crucial in these cases:

• Legal Guidance: A lawyer familiar with family law in New Jersey will help you understand your rights and options when filing for divorce based on desertion.

• Evidence Collection: Proving desertion can be difficult, especially in cases of constructive desertion. Your lawyer will assist in gathering the necessary evidence and presenting a compelling case to the court.

• Negotiating Settlements: In some cases, a negotiated settlement may be possible even after desertion. A divorce lawyer can help you negotiate favorable terms for alimony, child custody, and asset division.

• Court Representation: If your case goes to trial, having an experienced family law attorney by your side will ensure that your case is presented effectively, and your interests are protected.

Contact the Skilled Family Law Attorneys at Hartman Duff for Divorce Representation in New Jersey

If you’re considering divorce on the grounds of desertion, it’s essential to have experienced legal counsel guiding you through the process. At Hartman Duff, we specialize in divorce cases and can help you navigate the legal complexities of desertion claims in New Jersey.

Call us today at 609-853-5579 for a consultation, or fill out our online contact form to speak directly with one of our knowledgeable divorce attorneys. Let us help you protect your rights and secure the future you deserve.