Legal Question in Family Law in New Jersey

Re: Desertion under N.J.S.A. 2A:34-2(b)

I have a better question. Why do you feel like you need to prove this anyway? Almost all divorces end in a settlement. If they go to trial, the cause of action is rarely in dispute, except for perhaps an allegation of adultery. I suggest you see an attorney and let him or her worry about that. Unless you wind up going to trial or there is a lot to fight over, divorces are generally not that expensive. Furthermore, many attorneys (such as myself and others on this website) have free consultations so see what they have to say before you do anything. If you'd like to discuss your case with me, call me at 732/247/3340.

Good luck!

Re: Desertion under N.J.S.A. 2A:34-2(b)

The statute reads:

Willful and continued desertion for the term of 12 or more months, which may be established by satisfactory proof that the parties have ceased to cohabit as man and wife.

There are basically two types, physical desertion (where your spouse left) vs. constructive dessertion (which is what I believe you are asking).

Usually a party will plead and testify that a continuous, unjustified withholding of sexual relations against the will of the other spouse for the statutory one-year period. This will give rise to a cause of action for divorce on the ground of desertion. It really is a he said vs. she said unless there is some proof, like emails, recorded conversations or some admission by the other party.

Such a desertion is also referred to as a constructive desertion, or sexual desertion. To constitute sexual desertion, the abstention from sexual relations must have been without just cause or reason. A wrongful intent is of the essence of the cause of action.

Constructive desertion can occur when the parties are residing in the same household if they are separated on the premises. This form of desertion would be a constructive desertion where one spouse refuses to have marital relations with the other against the will of the other for a one-year period.

You also might have pictures of different bed rooms, etc. Every case will have different facts.

Please call my office if you would like to schedule an appointment either in person or by telephone. My contact information is listed in the links below. Let my secretary know you found me through LawGuru, and I will give you a free initial consultation.

Disclaimer: You can not rely on the advice of an attorney given over the internet. The exact facts of your situation, including facts which you have not mentioned in your question, may completely change the result for your situation.

Re: Desertion under N.J.S.A. 2A:34-2(b)

It sounds as though you are trying to obtain a divorce without the services of an attorney but have no idea of what you are doing. You need a lawyer.

Call me if you like.

Gary Moore, Attorneyatlaw.com

Re: Desertion under N.J.S.A. 2A:34-2(b)

Please call my office at 609/601/2360 to discuss your situation in more detail.

Thank you.