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FAULT V. NO FAULT DIVORCE 2018-01-05T14:13:01+00:00

In Massachusetts, there are two categories of grounds for divorce: 1) no-fault based grounds, and 2) fault-based grounds. The state of Massachusetts closely followed California’s lead in adopting no-fault divorce in the 1970’s, but fault divorce remains prevalent. What is the difference between no-fault divorce and fault divorce today?

The term “no-fault divorce” speaks for itself. No-fault divorces occur when a marriage is indisputably broken beyond repair, but neither spouse blames the other. This type of divorce means the petitioning spouse does not have to prove that the other spouse did something wrong. There is no “guilty” party from the court’s perspective in a no-fault divorce.

 One spouse need only file for no-fault divorce based on an “irretrievable breakdown” of his/her marriage, which indicates that the couples no longer gets along and does not want to stay married. Efforts at reconciliation are fruitless. You do not need to supply any other reason or prove anything to the judge in a no-fault divorce.

An action for no-fault divorce may be commenced with the filing of:

(a) a petition signed by both spouses;
(b) a sworn affidavit executed by one or both spouses that an irretrievable breakdown of the marriage exists; and
(c) a notarized separation agreement executed by the spouses, which settles all divorce-related issues.

In a “fault” divorce, the petitioning spouse must prove that the other spouse has committed a wrong that justifies the petitioning spouse in getting a divorce. In this type of divorce, one spouse considers the other at fault for causing the marriage to fail.

There are various grounds for a “fault” divorce, which are listed in Massachusetts General Laws chapter 208, section 1:

  • Adultery: one spouse must prove the other’s infidelity by divulging any known dirty details.
  • Utter desertion: one spouse left voluntarily and without justification or intent to return, and stayed away for at least one year prior to the filing of the complaint. If the deserter spouse returns for even a few days with the hope of reconciling, the one-year period is reset.
  • Gross and confirmed habits of intoxication: one spouse has voluntarily and excessively used intoxicating liquor or drugs on several occasions.
  • Cruel and abusive treatment: one spouse was physically, emotionally, and/or psychologically abusive to the other in multiple instances.
  • Impotency: a spouse was impotent from a specific date up until the filing of the divorce complaint.
  • Non-support: one spouse refuses or neglects to provide suitable support and maintenance for the other spouse, despite being sufficiently able.
  • Imprisonment: one spouse is serving a prison sentence of five years or longer (Mass. Gen. Laws c. 208 §2).

 It is common misconception that fault divorce gives the petitioner a sharp advantage in getting property and alimony. This is not the case. The judge considers the same factors in deciding both fault and no-fault cases. Also, if you think you can file for divorce on fault grounds and run off with the children, you might want to reconsider—fault-based divorce has little bearing on custody or visitation decisions.

You might feel like you need to file for divorce on fault grounds if you have been victimized in your marriage; however, it is possible to have it both ways. Filing for divorce due to irretrievable breakdown will not prevent you from conveying your unhappiness regarding your spouse’s conduct or behavior. You will also save yourself the grief of having to prove the reason for your fault divorce. For a fault divorce to be granted, the petitioning spouse must actually prove the ground for divorce for which he/she filed. A no-fault divorce is less demanding by comparison, but it’s still no cake-walk—you must prove that there is no chance of reconciliation in your marriage.

Still, because a “fault” divorce is often more expensive, complicated (sometimes needlessly), and lengthy than a no-fault divorce, couples are opting for no-fault divorce.

You can file for divorce in three specific ways in Massachusetts:

  1. Both spouses can file a joint petition, typically an uncontested “1A” divorce. This involves uncontested, no-fault terms for a divorce settlement.
  2. One spouse can file an individual complaint, typically a contested “1B” divorce. This complaint involves a no-fault divorce, but with contested terms. Here, the spouses do not initially agree to divorce, but one spouse finds that the marriage is irretrievably broken and independently begins the divorce process.
  3. One spouse can file for a fault divorce, in which that spouse must prove the existence of one or more of the aforementioned grounds.