My husband wants to file for a no fault divorce, I want fault. Does it matter who files first?

Asked about 3 years ago - Middlesex, NJ

I believe I have enough grounds for a fault divorce. If he files first can I counter with fault? I do understand no fault is easier, but the grounds do matter to me plus there are other things at stake - we also have a home, 2 children and he does not come to the table in good faith.

Attorney answers (4)

  1. David Perry Davis

    Contributor Level 17

    1

    Best Answer
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    Answered . I'm pretty much 100% sure that Mary's response was a typo and she meant to say "does NOT" effect the outcome.

    Fault is irrelevant to - alimony, equitable distribution / property division, child support, child custody. The only time it is relevant at all is when it has a direct economic effect on the parties - for example, a drunkard gambling away a marital 401k in Atlantic City.

    Other exception is if you're seeking money damages for domestic torts (I'm handling a case now where he was cheap about everything including his choice of call girls and gave her Herpes - we're pleading the issue [and getting the file sealed]).

    Otherwise, unless you're Catholic and seeking an annulment (or Muslim and seeking a Religious Divorce with the husband granting it) - in which case you may need to plead adultery - there's no benefit to pleading fault.

    There is, however, a cost. If you inflame tempers (and there's ALWAYS two sides to a story....) then it becomes more difficult to resolve your case and the cost spirals out of control (would you rather pay $2,000 for your divorce, or $20,000... or, as in a case noted by the Appellate Division last week - $1.8 million?)

    If you have a good, solid reason to pursue fault (religion, domestic assault), then do so ... but don't operate under the assumption that it will effect the outcome.

    And please don't be guided by TV divorces -- a judge is NEVER going to care about why you're getting divorced unless it effects economics. There is no "moral vindication" in Family Court -- that's TV / movies only. In fact, to the limited extent that a judge is even read your complaint, claiming fault when there's no economic or religious reason to do so can make you look bad / overly angry / emotional and can hurt your case if there are support or custody issues.

    Think carefully before you proceed. The smarter way to go about it is no-fault and mediation. Don't go to war unless you really need to and have a solid reason. Talk to an attorney (or 2) before you file.

    The above is said without seeing your case file and without my understanding the entirety of the facts of your... more
  2. Mary Tom

    Contributor Level 14

    Answered . You may assert any grounds that are applicable to your case in a counterclaim if he files first. The grounds for divorce really has something to do with "equitable distribution", child support, alimony and/or counsel fees.

    Good luck.

    MARY TOM, ESQ.
    HUNZIKER, JONES & SWEENEY, P.A.
    Wayne Plaza II
    155 Route 46 West
    Wayne, NJ 07470
    Phone No. (973) 256-0456
    Fax No. (973) 256-4784

    This message does not constitute legal advice and is for informational purposes only. This message does not... more
  3. Christina Fichera

    Contributor Level 9

    Answered . In my opinion, fault does not really matter. In the end, you are divorced whether there is fault or not.

    Legal disclaimer: This message does not constitute legal advice and is for informational purposes only. This... more
  4. James R Fridie III

    Pro

    Contributor Level 13

    Answered . Mrs. Tom is correct, if you husband files a complaint for uncontested divorce, you can file an answer and counterclaim, and in your request for relief detail what you are seeking (I.E. custody, equitable distribution of marital property, etc). Keep in mind uncontested divorce is the best option when the parties have the framework of an agreement in place and there are no points of contention. Good luck.

    Disclaimer: The information here is general and not intended to be construed as legal advice or form an attorney-... more

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