LAWS, SESSION OF 1907

 

CHAPTER 216

 

An Act providing for divorces and for decrees of nullity of marriage, and for alimony and the maintenance of children (Revision of 1907).

 

BE IT ENACTED by the Senate and General Assembly of the State of New Jersey:

 

I. DECREES OF NULLITY

 

1.      Decrees of nullity of marriage may be rendered in all cases when—

 

I. Either of the parties has another wife or husband living at the time of a second or other marriage;

 

II. The parties are within the degrees prohibited by law, but when any such marriage shall not have been annulled during the lifetime of the parties the validity thereof shall not be inquired into after the death of either party;

 

III. The parties or either of them was at the time of marriage physically and incurably impotent; provided, the party making the application was ignorant of such impotency or incapability at the time of the marriage, or has not subsequently ratified the marriage.

 

IV. The parties or either of them was, at the time of the marriage, incapable of consenting thereto, and the marriage has not been subsequently ratified; provided, that where the party capable of consent is the ap­plicant such party shall have been ignorant of the other's incapacity at the time of the marriage, and shall not have confirmed the marriage subsequently to the other

party regaining capacity;

 

V. At the suit of the wife, when she was under the age of sixteen years at the time of the marriage, unless such marriage be confirmed by her after arriving at such age;

 

VI. At the suit of the husband when he was under the age of eighteen at the time of the marriage, unless such marriage be confirmed by him after arriving at such age.

The decree of nullity of marriage shall not render illegitimate the issue of any marriage so dissolved, ex­cept where the marriage is dissolved because either of the parties had another wife or husband living at the time of a second or other marriage. Such marriage shall be deemed void from the beginning, and the issue thereof shall be illegitimate.

 

 

II. CAUSES FOR DIVORCE.

 

2. Divorces from the bond of matrimony may be decreed for the following causes:

           

I. Adultery by either of the parties;

 

II. Willful, continued and obstinate desertion for the term of two years.

 

            3. Divorces from bed and board may be decreed for­

 

I. Adultery by either of the parties;

 

II. Willful, continued and obstinate desertion for the term of two years;

 

III. Extreme cruelty in either of the parties.

            In all cases of divorce 'from bed and board, the court may decree a separation forever thereafter, of' for a lim­ited time, as shall seem' just and reasonable, with a provision that in case of a reconciliation at any time

thereafter the parties may apply for a revocation or suspension of the decree, and upon such application the

court shall make such order as may seem just and reasonable.

 

 

III. JURISDICTION.

 

            4. The Court of Chancery shall have jurisdiction of all causes of divorce or.nullity and of alimony and maintenance by this act directed and allowed.

 

            5. For purposes of annulment of marriage jurisdic­tion my be acquired—

­

I. By personal service of process upon the defendant within this State when either party is a bona fide resident of this State at the time of the commencement of the action;

 

II. When the defendant cannot be served personally with process within this State, and when at the time of the commencement of the action the petitioner is a bona fide resident of this State, jurisdiction for the purpose of annulment of marriage may be acquired by publica­tion, to be followed, where practicable, by service upon or notice to the defendant without this State, or by ad­ditional substituted service upon the defendant within

this State, as prescribed by' law or by rules of court.

 

6. For purposes of divorce, either absolute or from bed and board, jurisdiction may be acquired by personal service of process upon the defendant within this State, under the following conditions:

            (a) When, at the time the cause of action arose, either party was a bona fide resident of this State, and has continued so to be down to the time of the com­mencement of the action, except that no action for ab­solute divorce shall be commenced for any cause other than adultery, unless one of the parties has been for the two years next preceding the commencement of the action a bona fide resident of this State.

(b) When, since the cause of action arose, either party has become, and for at least two years next pre­ceding the commencement of the action has continued to be, a bona fide resident of this State; provided, the cause of action alleged was recognized in the jurisdic­tion in which such party resided at the time the cause of action arose, as a ground for the same relief asked for in the action in this State.

 

7. When the defendant cannot be served personally with process within this State, and when at the time of  the commencement of the action the plaintiff is a bona fide resident of this State, jurisdiction for the purpose

of divorce, whether absolute or from bed and board, may be acquired by publication, to be followed, where

practicable, by service upon or notice to the defendant without this State, or by additional substituted service

upon the defendant within this State, as prescribed by law or rules of court, under the following conditions

(a) When at the time the cause of action arose, the petitioner was a bona fide resident of this State, and has continued so to be down to the time of the com­mencement of the action, except that no action for ab­solute divorce shall be commenced for any cause other than adultery, unless the petitioner has been for the two years next preceding the commencement of the action a bona fide resident of this State.

(b) When, since the cause of action arose, the peti­tioner has become, and for at least two years next pre­ceding the commencement of the action has continued to be, a bona fide resident of this State; provided, the cause of action alleged was recognized in the jurisdic­tion in which the petitioner resided at the time the cause of action arose, as a ground for the same relief asked for in the action in this State.

 

8. The Court of Chancery shall not have jurisdiction of any cause for divorce, or nullity of marriage under this act, unless the petitioner shall make his or her oath or affirmation, which shall be annexed to the petition, that his or her petition is not made by any collusion be­tween him or her and the defendant, but in truth and good faith, for the causes set forth in the petition.

 

 

IV. PROCEDURE AND PRACTICE

 

9. The like process and procedure shall be had and pursued in all such causes as are usually had and pursued in other causes in the Court of Chancery, except so far as other process and procedure is prescribed by or under the authority of this act.

 

10. All suits in the Court of Chancery for divorce, or nullity under this act, shall be commenced by filing a petition with the clerk of the court, which petition shall plainly and fully state the cause or causes of the application for such divorce or nullity and the relief prayed.

 

11. Upon filing the said petition the clerk shall, if required, make out a certified copy thereof, to be served on the defendant, and issue a citation under the seal of the court, for the defendant to answer the said-petition on or before such day as shall be mentioned for that purpose in the said citation, which may be any day, either in term time or vacation, not less than thirty days subse­quent to the date of issuing the said writ; such citation shall bear date the day of issuing thereof, and be tested in the name of the Chancellor; to every citation a notice shall be added that the defendant is not required to appear at Trenton in. person at the return day, but if he intend to make a defense, 'It is only necessary for him to answer, plead or demur to the petition within the time required by law.

 

12. It shall be the duty of the sheriff or coroner, as the case may require, of any county, to whom any such citation and certified copy of the petition shall be directed or delivered, to serve the same, and to make return of the said citation at the time and place therein mentioned, which shall be filed by the clerk.

 

            I3. Every such citation shall be served by delivering to the defendant personally a copy thereof, together with a certified copy of the petition, at least twenty entire days before its return.

 

            14. If it shall be made to appear, by affidavit or otherwise, to the satisfaction of the Chancellor, that such defendant is out of this State, or cannot upon due inquiry be found therein, or that he or she conceals himself or herself within this State, the Chancellor may thereupon by order direct such defendant to answer the petition, at a certain day therein named, not less than two or more than six months from the date of such order, which order or notice thereof shall, within twenty days thereafter, be published in one of the newspapers published in this State, and designated in such order, and continued therein for four weeks successively, at least once in every week, and shall be published in such other manner as the particular circumstances of the case may require, if, in the opinion of the Chancellor, any further or other publication shall be necessary Service upon the defendant within or without this State of the petition and of such order or notice thereof as service substituted for personal service of process within this State, shall also be made within the same time, and in such manner as the Chancellor may by gen­eral rules prescribe.

 

15. The defendant shall file his or her plea, demurrer or answer to the petition within three days after the day mentioned in the citation, if the citation is returned "served" or "cited" by the sheriff or coroner, and within the time limited by the order to answer, unless, in either case, the court grants further time for that purpose. The answer shall plainly and fully set forth the cause or causes of his or her defense, and shall be signed by the defendant, but shall not be sworn to. No replication shall be necessary to put the cause at issue. If the defendant files a plea or demurrer to the petition the pro­ceedings therein, including the fixing of time for filing of an answer after plea or demurrer overruled, shall be as in the causes in the Court of Chancery on pleas or demurrers to bills.

 

16. If the defendant shall not file his or her answer within the time limited by this act or granted by the

court, the court may make an order that the petitioner proceed to take depositions and other evidence and bring on the hearing of the cause ex parte.

 

17. Anyone charged as a particeps criminis shall be       made a party, upon his or her due application to the court, subject to such terms and conditions as the court may prescribe.

           

18. In all uncontested cases, where the court may deem it necessary or proper, a disinterested solicitor may be assigned by the court actively to defend the case.

           

19. No proceedings in any suit commenced under this act shall be set aside or otherwise annulled or made void for any defect in matter of form, or for any mistake or omission not affecting the real merits of the cause, and the Chancellor may permit either party to amend his or her proceedings in the cause, either in matters of form or substance, and proceed to give judgment according to the merits of the case.

 

20. If after the hearing of any cause, or after a jury trial resulting in a verdict for the plaintiff, the court shall be of opinion that the plaintiff is entitled to a decree annulling the marriage, or a decree for divorce from the bonds of matrimony, a decree nisi shall be entered.

 

21. A decree nisi shall become absolute after the expiration of six months from the entry thereof, unless

appealed from or proceedings for review are pending, or the court before the expiration of said period for sufficient cause, upon its own motion, or upon the applica­tion of any party, whether interested or not, otherwise orders; and at the expiration of six months such final and absolute decree shall then be entered upon applica­tion to the court by the petitioner, unless prior to that time cause be shown to the contrary. Appeals shall be taken only from the decrees nisi and not from the final decrees, and shall be taken within six months from the filing of the decree nisi.

 

22. When any cause shall be finally determined, the of the Court of Chancery shall enter or enroll together, in order, the proceedings, decretal orders, reports and final decree in such cause, in his book of decrees, which enrollment shall be signed as in other cases.

 

 

23. There shall be allowed in the taxation of costs, for the petition, the sum of one dollar; for the answer, the sum of one dollar; to the clerk, for the citation and certified copy of the petition, seventy-five cents; to the sheriff, for serving and returning the citation, one dollar and fifty cents, and to the examiner, for taking the examination of every witness, for each sheet, twenty cents, and for certifying every exhibit shown to a witness, ten cents; and no other or greater fee shall be allowed for the said services.

 

 

24. If, in the opinion of the Chancellor, any matter of fact shall render the intervention of a jury necessary in any suit or proceeding for divorce or nullity, then the Court of Chancery is hereby authorized to direct an issue for the trial of the same in the Supreme Court, or in one of the Circuit Courts.

 

 

V. ALIMONY AND MAINTENANCE

 

25. Pending a suit for divorce or nullity, or after decree of divorce, it shall be lawful for the Court of Chancery to make such order touching the alimony of the wife, and also touching the care, custody, education and maintenance of the children, or any of them; as the circumstances of the parties and the nature of the case shall be rendered fit, reasonable and just, and to require

reasonable security for the due observance of such orders, and upon neglect or refusal to give such reasonable security as shall be required, or upon default in com­plying with the order,, to award and issue process for the immediate sequestration of the personal estate, arid the rents and profits of the real estate of the party so charged, and to appoint a receiver thereof, and cause 'such personal estate and the rents and profits of such real estate, or so much thereof as shall be necessary, to be applied toward such alimony and maintenance as to the said court shall from time to time seem reasonable and just, or to enforce the performance of the said orders by such other lawful ways and means as is usual, and according to the course and practice of the Court of Chancery; orders so made may be revised and altered by the court from time to time as circumstances may require.

 

26. In case a husband, without any justifiable cause, shall abandon his wife or separate himself from her, and refuse or neglect to maintain and provide for her, it shall be lawful for the Court of Chancery to decree and order such suitable support and maintenance, to be paid and provided by the said husband for the wife and her children, or any of them, by that marriage, or to be made out of his property, and for such time as the nature of the case and circumstances of the parties render suit able and proper in the opinion of the court, and to compel the defendant to give reasonable security for such maintenance and allowance, and from time to time to make such further orders touching the same as shall be just and equitable, and to enforce such decree and orders in the manner mentioned in the last preceding section of this act; but during the time such maintenance shall be allowed by the decree or order of the court, the husband shall not be chargeable with her debts; in cases where a husband cannot be found within this State to be served with process, his estate, property and effects within this State and the rents and profits thereof, may be sequestered to compel his appearance and performance of any decree or order which may be made in the suit, but the process of sequestration shall be issued only upon special order therefore, to be made upon proof of the claim alleged in the bill, and that the defendant cannot be found within the State for the service of process; upon process of sequestration, a bond as provided in cases of ne exeat may be given in discharge of the writ, and the sum in which the party shall give bond, with sufficient surety or sureties, shall be endorsed upon the writ in words at length; where the proceedings are by process of sequestration, and defendant does not appear, the decree shall be enforceable only out of and against the estate sequestered.

 

27- In any such suit as is mentioned in the last preceding section, it shall be lawful for the Chancellor, if application therefore be made before answer filed, to order a bond to be given in the sum of one hundred dollars, by one or more sufficient sureties, with condition to pay such costs as shall or may be awarded by the court to be paid to the defendant.

 

 

 

VI. MISCELLANEOUS PROVISIONS.

 

28. If it appear to the court that the adultery complained of shall have been occasioned by the collusion of the parties, and done with an intention to procure a divorce, or that the complainant was consenting thereto, or that both parties have been guilty of adultery not con­doned, then no divorce shall be decreed.

 

29. Whenever any poor person shall have cause of  suit under this act and shall make an affidavit or affirmation that he or she is not worth one hundred dollars clear estate, the Chancellor may, at his discretion, assign to such poor person a solicitor and counsel learned in the law, to prosecute the said cause, who, together with all other officers, shall perform their respective duties therein without fee or reward.

 

30. The court, upon or after granting a divorce the bonds of matrimony, may allow her to resume her maiden name or the name of a former deceased husband.

 

31. Willful and obstinate desertion shall be regarded, held and construed to be "continued" within the meaning of this act, notwithstanding that after such desertion has or shall have begun, the deserting party has or shall have been imprisoned in this or any other State or country upon conviction by due process of law for a crime, misdemeanor or offense, not political, committed in this or any other State or country, or for any other reason, shall have been under restraint, either by due process of law or his or her voluntary act.

 

32. The Chancellor shall from time to time make such rules and orders regulating the practice and procedure under this act as may, in his judgment, render the proceedings more efficient and simple, and prevent unnecessary cost and delay.

 

VII. FOREIGN DECREES.

 

33. Full faith and credit shall be given in all courts of this State to a decree of annulment of marriage or divorce by a court of competent jurisdiction in State, Territory or possession of the United States when the jurisdiction of such court was obtained in the manner and in substantial conformity with the condi­tions prescribed in sections five, six and seven of this act. Nothing herein contained shall be construed to limit the power of any court to give such, effect to a decree of annulment or divorce by a court of a foreign country as may be justified by the rules of international comity; provided, that if any inhabitant of this State shall go into another State, Territory or country, in order to obtain a decree of divorce for a cause which occurred while the parties resided in this State, or for a cause which is not ground for divorce under the laws of this State, a decree so obtained shall be of no force or effect in this State.

 

34. This act shall take effect on January first, one thousand nine hundred .and eight, and the acts mentioned in the schedule hereto annexed, and all acts and parts of acts inconsistent herewith are hereby repealed; provided, that nothing in this act contained shall affect proceedings in any suit pending at the time this act goes into effect so far as relates to the jurisdiction of the court or the causes of divorce or nullity, or the effect or validity of orders or divorces already made in such pending actions, but the further proceedings and prac­tices in such actions shall be in accordance with this act, as nearly as may be practicable.

 

SCHEDULE [Acts repealed]

 

(1) An act providing for divorces and for decrees of nullity of marriage and for alimony and the maintenance of children (Revision of 1902), approved April third, one thousand nine hundred and two.

(2) A supplement to said act (Revision of 1902), approved March twenty-sixth, one thousand nine hundred and three.

(3) A supplement to said act approved April seven­teenth, one thousand nine hundred and five.

 

Approved May 17, 1907.