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Altbrandt v. Altbrandt

Decided: June 12, 1974.

ROBERT ALTBRANDT, PLAINTIFF,
v.
IPPOLITA ALTBRANDT, DEFENDANT



Lester, J.s.c.

Lester

This is an action for divorce based upon 18 months separation, pursuant to N.J.S.A. 2A:34-2(d).

The parties were married on November 12, 1949. Plaintiff is a bona fide resident of the State of New Jersey, residing in Paramus. Defendant is similarly domiciled in New Jersey, residing in Hoboken. The parties separated on or about Thanksgiving Day, November 27, 1969, since which time, and for 18 consecutive months, they have lived separate in different habitations, and there is no reasonable prospect of reconciliation.

Defendant was hospitalized for several weeks in 1968 and in the summer of 1973. It is alleged that she was incompetent at the time of separation although not hospitalized.

N.J.S.A. 2A:34-2 sets forth the causes for divorce from bond of matrimony. Subsection (d) provides:

Separation, provided that the husband and wife have lived separate and apart in different habitations for a period of at least 18 or more consecutive months and there is no reasonable prospect of reconciliation; provided, further that after the 18-month period there shall be a presumption that there is no reasonable prospect of reconciliation; * * *.

Defendant contends that such separation should be voluntary; that at the time of commencement of separation and thereafter, she was mentally incompetent; therefore, the separation was not made voluntarily, and hence a divorce should not be granted under this section.

It is the policy of this State to terminate dead marriages. To achieve this policy, the Legislature recently enacted a general revision of the divorce laws incorporating several "no fault" causes of divorce. Legislative intent with respect to this section was to establish a no-fault ground for divorce to accord with public policy that dead marriages should be legally terminated. Wansner v. Wansner, 119 N.J. Super. 190 (Ch. Dv. 1972).

The statute does not characterize the nature of the separation. Rationale of the provision of this section relating to divorce on ground of separation is to terminate dead marriages, regardless of fault or lack of fault. Morrison v. Morrison, 122 N.J. Super. 277 (Ch. Div. 1972).

The exceptions are only those enumerated by the statute in other subsections. Desertion must be willful and continuous. N.J.S.A. 2A:34-2(b). Separation as a result of imprisonment must be for at least 18 months. N.J.S.A. 2A:34-2(g). Separation as a result of institutionalization for mental illness must be for 24 months. N.J.S.A. 2A:34-2(f). Separation is nowhere else characterized. In Morrison v. Morrison, 122 N.J. Super. 277 (Ch. Div. 1972), it was held that any separation of spouses which does not result from imprisonment or institutionalization and which continues for 18 or more consecutive months gives rise to a cause of action for divorce, whether the separation is voluntary

or involuntary, if it also appears that there is no reasonable prospect ...


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