After the passage of the no-fault divorce lawwhich authorizes grounds based upon irretrievable breakdown of the marriage for a period of six months in actions commenced on or after Oct. 12, 2010it was thought that we had one less issue to fight over amidst all of the other usual points of available contention. Unfortunately, in some quarters, whether or not “no- fault” means “no trial” is still being debated.
Despite the clearly expressed legislative intent, there are several decisions discussed infra, which have found that legislative omission in the statutory enactment raises due process issues and creates the need for a trial when one party objects to the proponent’s sworn assertion that the marriage was irretrievably broken or that the breakdown has not lasted for the requisite six months.1 The claim that a right to a jury trial is implicated has also been raised. This article avers that adherence to those positions serves only to perpetuate the very conflict that the statute sought to avoid and that those positions are refutable. Fortunately, some very well-reasoned lower court decisions have also been issued which will hopefully guide others along the right path.
The Statute
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