I've only used that cause of action once but it was in a case where my client's wife (a high school teacher) was having sex with a student. I defended it another time and it was thrown out on motion to dismiss.
There's really no caselaw as to what "sexual deviant conduct" is or what it's based upon. I think it's sort of one of those porn type issues- you'll know it when you see it.
Personally, I think you'd be fine filing it in your case (as well as extreme cruelty obviously).
Ps- there is a theory that when sexual deviant conduct was originally created, it was actually (archaically) originated as a cause of action related to "homosexual activity" (please note I use that word/phrase ONLY because of the negative connotation and historical use.). The domestic partnership statute eliminates sexual deviant conduct as a cause of action for relationship termination. Thus, logic would dictate that the powers that be eliminated it for a particular reason.
Good luck- such a sad situation.
Jo
Jodi A. Argentino, Esq. Managing Partner - Custody & Dissolution Team
Guston & Guston, LLP
(201) 447-6660
Original Message------
Husband sexually assaulted the parties' daughter. We're filing a divorce complaint - she would like to use Deviant Sexual Conduct as grounds (first one I've done in a long, long time that wasn't straight no-fault). I know the act(s) must be "conduct voluntarily performed by the defendant without the consent of the plaintiff." N.J.S.A. 2A:34-2(h). But does the act have to be committed against the plaintiff, or would this suffice?
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David Perry Davis, Esq.
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www.FamilyLawNJ.pro
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Fax: 609-737-3222
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