Couples find breaking up hard to do, even with no-fault
Seeking a way out, without recriminations
July 31, 2006
The Times (Trenton)
By Linda Stein
After five years, Selina Penn-King wanted out of her
The former Hamilton woman was looking to make a simple
exit: No kids, no fighting and no airing of painful details.
But when a judge did not accept the reasons she and her
soon-to-be ex-husband put forth, the couple had to open
their relationship to scrutiny.
That has Penn-King steaming and her attorney campaigning
to change the law.
"What should have just been two adults who agreed it just
isn't working, now we have to pump up the reasons,"
Penn-King said. "It just didn't seem right. ... We're just
two adults that have differences. It just got ugly and
didn't make sense. It just brought up a lot of emotional
Although New Jersey has long had no-fault divorces,
thousands of people find out every year that breaking the
bonds of matrimony isn't as easy as that expression
"Unless you've lived apart for a year and a half, you
have to allege some kind of cruelty," said lawyer David
Perry Davis, who represents Penn-King.
If a spouse claims extreme cruelty, the marriage can be
dissolved in three months, but often people are reluctant to
make those claims, he said.
"People are ready to move on but some judges are
rejecting complaints and are saying they need something
meatier," Davis said.
He believes irreconcilable differences should be added as
grounds for divorce, coupled with a six-month waiting
period. He said that would make divorce less costly and less
acrimonious for New Jersey residents.
Others in the legal field as well as some lawmakers
agree. They back a bill that would add "irreconcilable
differences which have caused the breakdown of the marriage
for a period of six months and which make it appear that the
marriage should be dissolved and that there is no reasonable
prospect of reconciliation" to the eight other grounds for
divorce in the state.
Cause for alarm
But not everyone agrees that hastening divorce is a good
"Anything to make a divorce easier is against the
interests of society," said Demetrios Stratis, a spokesman
for the New Jersey Family Policy Council, a non-profit group
that lobbies for family values. "In general, we believe
divorce is a factor to blame in the moral decline and the
decline in the values system in our society and anything to
make it easier to get divorce should be rejected."
The New Jersey Catholic Conference has opposed adding
irreconcilable differences to the law since it was proposed
in 1995 as part of the recommendations of a committee that
studied divorce law.
"The tragic consequences of divorce upon children and
upon the family is one of the important reasons why we
unalterably oppose the commission's recommendation that
irreconcilable differences ... be added as a new ground for
divorce in New Jersey," said William F. Bolan Jr., the
group's executive director. "This conference believes this
provision makes a mockery of marriage." His group believes
that marriage should be strengthened and the acceptance of
divorce should be a "cause for profound alarm, not
resignation, passivity and excuse-making."
To be sure, New Jersey's divorce rate has climbed in
recent years, from 60,943 divorces granted in 2001 to 64,252
last year, although the state does not track the grounds
Extreme cruelty has been cited as grounds even when it's
not true because it's the fastest course of action.
Carol Oswald, who has practiced family law for 25 years
and chairs the family section for the Mercer County Bar
Association's Bench-Bar committee, said that stems in part
from the way the law is written.
"Most people don't want to wait 18 months, living in
separate houses before they even begin the process," said
Oswald, who favors changing the law. Now "the only
reasonable course is based on extreme cruelty and no matter
how gently you try to word it, it's offensive to some
people," she said.
Most people "would rather not be forced to put their
personal lives into a court record. Once you file that
public record, it's there for all to see. ...," she said.
"Irreconcilable differences would allow them to file (for
divorce) and not air their dirty laundry. There should be a
more civilized way to get divorced."
A legal fiction
The change in the law would bring New Jersey into line
with other states, like California, said Assemblyman Reed
Gusciora, D-Princeton, who has recently signed on as a
co-sponsor of the measure.
"If you go down to family court you will find nearly
every single divorce alleges extreme cruelty, just so you
can take advantage of being separated for three months,"
If the law was changed, couples would be able to "go
their separate ways without being forced to lie."
"There are people who don't want to allege (extreme
cruelty) if children are involved," he said. "You actually
have to create the legal fiction there was extreme cruelty,
have wild accusations about spousal abuse alleged so you can
get a quicker divorce."
Gusciora said he believes the change would not encourage
"We're already living in an age where Newt Gingrich and
Brittany Spears can have a divorce whenever they want," he
Davis also points to the cost factor. Right now an
average contested divorce can cost $5,000 or $6,000, he
said. An uncontested divorce can be as little as $600.
No easy answers
Assemblyman Neil Cohen, D-Union, who co-sponsored the
bill with Assemblyman Christopher Bateman, R-Somerset, said
the Legislature approved the bill in the late 1990s only to
have it conditionally vetoed by former Gov. Christie Whitman
in 1999. Cohen, who blames conservative opposition, said he
has been trying to get it passed ever since. A lawyer who
handles some divorces, Cohen said most of his clients are
astounded to learn New Jersey does not already have this
provision. Instead they have to "sometimes amend pleadings
and put in nasty stuff."
Rutgers University law professor Sally Goldfarb said
there are arguments to be made for and against the change.
"There's no easy answer," Goldfarb said. "New Jersey has
not made divorce available in the absence of fault or an
18-month waiting period. The effect of that (change) would
make divorce easier to obtain. It would liberalize the
availability of divorce in New Jersey. Whether that's good
or bad, opinions differ."
Making it cheaper and less angst-ridden is "the argument
for making divorce quicker and easier to obtain," she said.
"On the other side, some people think it should not be done
lightly, that divorce is a cumbersome process and some
believe it should remain so."
"There's a big difference if it's mutual rather than only
one person," she added. "A unilateral, no-fault option is
disadvantageous for people who want to work on the marriage.
"Many states make it available in a shorter period of
time and this would dramatically shorten it," she said of
the pending legislation. "Irreconcilable differences would
be available for the first time ... It's not clear if this
would break down as a male or female issue but it would make
it easier for one person to get out of a marriage."
Anju D. Jessani, president of the New Jersey Association
of Mediators, said her organization favors the proposed
change in the law.
"The belief that consenting adults in a democracy who
construct a fair and mutually agreeable divorce agreement,
must still be forced to vilify their child's other parent in
the divorce filing, seems illogical and unnecessary,"
Jessani said. "In addition, even in the most amicable
divorce situation, fault grounds can create some level of
conflict and mistrust between the parties."
Plus, experience in other states shows that the rate of
divorce does not increase if irreconcilable differences is
available as a cause of action for divorce, she said.
Linda Stein can be reached at firstname.lastname@example.org or