-1

I was reviewing a link supplied by a helpful user regarding my earlier question, listing various legal grounds for divorce in New Jersey, and found this interesting tidbit:

4. Desertion
Desertion is a potential cause of action in the event that your spouse has abandoned you physically, ... , or sexually, as in refusing to engage in a marital relationship.

How exactly would the court determine this to be the cause of divorce? 99.99% of the time, this would be purely a "he said she said" situation, for how can someone prove refusal to engage? You can prove the opposite if there are children born to both parents, but how can one prove a negative? Or is the statement by the divorce initiator considered sufficient for the judge?

I'm interested in the question in general, but if a specific jurisdiction is needed, let's assume New Jersey, US.

user17760
  • 298
  • 2
  • 6

1 Answers1

4

How exactly would the court determine this to be the cause of divorce? 99.99% of the time, this would be purely a "he said she said" situation, for how can someone prove refusal to engage? You can prove the opposite if there are children born to both parents, but how can one prove a negative? Or is the statement by the divorce initiator considered sufficient for the judge?

Testimony under oath is evidence. Judges resolve "he said she said" situations every day on a routine basis with witness testimony alone by judging the credibility of each witness before them. See also an answer by @Jen about the subject of how things are proved in court in general.

In the appropriate case, testimony under oath with no other corroborating evidence can even support a murder conviction as proof beyond a reasonable doubt. It can certainly suffice to prove marital fault in a civil lawsuit for a divorce.

If the judge finds that witness testimony under oath between more than one witness is irreconcilably different, and each witness is equally credible, and that it is impossible to tell which person is telling the truth, then the person seeking relief from the court has failed to meet their burden of proof to obtain relief from the court.

But, this is rare. Usually, when witnesses are both testifying under oath and disagree about what happened, the judge will find that one witness is more credible than the other.

And, in truth, while people certainly do lie in open court under oath, and probably are more likely to lie in that situation than when speaking to someone not under oath outside of a courtroom, most of the time, people don't lie and the testimony of all of the witnesses are consistent with each other subject to limitations based upon what they could perceive from their perspective and the limitations of imperfect memories.

This could come down to demeanor in court, hesitation in answering, "tells", inconsistencies in their testimony, corroboration from other evidence and other witnesses (e.g. what someone said to a friend or wrote in a diary at the time), evidence that a witness has been convicted of a crime of deceit in the past, use of language that suggests coaching about their testimony, or common sense judgments about whose story seems more plausible under the circumstances of the parties in front of the judge.

ohwilleke
  • 211,353
  • 14
  • 403
  • 716
  • So in absence of one of the spouses blabbing about lack of marital relations in the past (to a witness who can be found and produced for the court), this seems improbable to prove, on the basis of your last line (lack of sex seems far less plausible, all other things being equal, than non-lack, in a marriage, to an outside observer like the judge based on common sense). – user17760 Dec 02 '22 at 05:31
  • 3
    @CuriousGeorge Judges almost alway believe what a witness tells them unless there is a good reason to doubt it. Cases where witnesses flatly contradict each other in their testimony are rare and usually it isn't hard for the judge to figure out who seems to be lying from myriad different case specific factors. What your comments and questions reveal to be your sense of what is plausible or common sense appears to be very atypical of people generally and judges in particular. – ohwilleke Dec 02 '22 at 05:34
  • I'm tempted to quote from "Dogma".... Remember Rufus's mini-speach: "Mary gave birth to Christ without having known a man's touch, this is true - but she did have a husband. And do you really think he would have stayed married to her for all those years if he wasn't getting laid? The nature of God and the Virgin Birth-- those are leaps of faith. But to believe a married couple never got down? That's just plain gullibility!" So... not atypical :) – user17760 Dec 02 '22 at 05:35
  • @CuriousGeorge But you have to condition what is typical upon someone being so frustrated in their marriage that they are publicly seeking a divorce for fault on the grounds of not getting any sex. This is an exceptional subset of married people. – ohwilleke Dec 02 '22 at 05:38
  • Well, if I'm the judge, and a person chooses that as a divorce reason, my guess (absent any supporting evidence; or evidence one was lying in testimony) would be "the person probably made it up to get better financial result from the divorce". As in, that's more likely situation, than a marriage with no sex. A little public humiliation tastes better with a financial windfall to soften it, so to speak. – user17760 Dec 02 '22 at 05:40
  • 1
    @CuriousGeorge As I said, your instincts are profoundly different from those of a typical judge in New Jersey and you should not trust you instincts on how judges will react (which is why you should never get divorced without a lawyer). – ohwilleke Dec 02 '22 at 05:44
  • Lucky for me, I never met a NJ judge - even outside court context - so I will accept your statement on trust :) And yes, divorcing without a lawyer seems like an obviously enough bad idea that I can't imagine anyone doing so. In case you got the wrong impression, my questions aren't stemming from me going through a specific divorce case, rather they are questions on the topic that I was curious about for a while reading about various divorces. This one was literally inspired by an article I was given on this site today :) – user17760 Dec 02 '22 at 05:49
  • @CuriousGeorge "divorcing without a lawyer seems like an obviously enough bad idea that I can't imagine anyone doing so." While this seems obvious, a majority of divorce litigants do so without lawyers, and in something like 1/3 of all divorces, neither spouse has a lawyer. – ohwilleke Dec 02 '22 at 06:01
  • Do you mean 1/3 of all, or of "real" divorces? ("real" as in, adversarial proceeding in front of the judge, vs. mutually agreed settlements - which would still be a better idea to have a lawyer for but I can understand not doing so). Also, I wonder how much of that statistic is "simple" cases where there's no kids and no assets/income to speak of, so even the cost of any spousal support may be less than lawyer cost. – user17760 Dec 02 '22 at 20:47
  • Most people without money but often having kids. "According to the Colorado Judicial Branch’s data from 2018, there were a total of 34,364 domestic relations cases across all Colorado judicial districts. Of that, over 23,000 had no attorney involved and the case level pro se rate was set at 67%. Of the over 69,000 parties, over 51,000 were without attorneys, and the party pro se rate was 75%." I've had some involvement with the PALS committee mentioned in the linked article. https://www.lawweekcolorado.com/article/llps-paraprofessionals-in-family-law-working-toward-justice/ – ohwilleke Dec 02 '22 at 21:06
  • Let us continue this discussion in chat. – user17760 Dec 02 '22 at 21:47