Grounds for Divorce in Massachusetts

"No-fault" and "Fault-based" Grounds for Divorce

It wasn't all that long ago that the only legally valid reason for divorce was that one of the spouses was guilty of misconduct—thus, at fault. But divorce law evolved, and the concept of no-fault divorce came about. Today, all states offer some form of a no-fault divorce, which allows spouses to dissolve a marriage without alleging and proving that the other did something wrong.

No-fault Divorce in Massachusetts

Massachusetts is different from many other states, in that it provides two options to obtain a no-fault divorce. These are designated in the state divorce law as 1A and 1B. The reason for the divorce is the same in both: irretrievable breakdown of the marriage, which basically means the spouses are no longer compatible and there's no reasonable chance of that changing. The distinction between the two options lies in the procedure you must follow to reach your goal of obtaining a divorce judgment.

To successfully pursue a 1A divorce, both spouses have to agree that the marriage is irretrievably broken, and sign a sworn statement to that effect. Additionally, they must have a notarized separation agreement. This is a document that contains the terms the spouses have agreed to in resolving their divorce issues, such as child custody, parenting time (visitation), child support, spousal support (alimony), and division of marital property (like the marital home, furnishings, and bank accounts). The law provides a streamlined process for a 1A divorce, because it's completely uncontested—the spouses have agreed to everything.

If a couple hasn't reached an agreement, a spouse can still proceed on a no-fault basis, under a 1B divorce. But the procedure in this scenario is more complicated and time-consuming. The spouse who is seeking the divorce has to file a written complaint with the court, then have a copy of it formally delivered to the other spouse. That other spouse can then file a response to the complaint. The divorce then methodically moves forward as a contested case.

Note that filing a 1B divorce doesn't prevent the couple from attempting to resolve their differences. They can always do that right up to the time the judge makes a final decision after a trial. In fact, if the spouses are able to settle their issues along the way, the law will then allow them to proceed under the quicker 1A method.

Massachusetts Fault-based Grounds for Divorce

There are seven fault-based grounds for divorce in Massachusetts:

• adultery
• impotency
• continued desertion for at least one year prior to the filing of the divorce complaint
• habitual intoxication caused by voluntary and excessive use of liquor or drugs
• cruel and abusive treatment
• gross, wanton, or cruel refusal or neglect to provide suitable support and maintenance for the other spouse (assuming the ability to provide that support exists), and
• a spouse's sentence of imprisonment for five or more years.

Although these grounds are basically self-explanatory, desertion has certain elements you should be aware of. Under the law, in order for desertion to qualify as a basis for divorce, the spouse who files the complaint (the plaintiff) must prove to the court that:

• the other spouse (the defendant) left voluntarily and without justification, meaning there wasn't a legitimate reason for leaving, such as domestic violence
• the defendant had no intention of returning
• the plaintiff didn't consent to the defendant leaving (it wasn't the plaintiff's idea or a mutual decision), and
• the defendant didn't cohabit (have relations) with the plaintiff for at least a year prior to the filing of the divorce.

Which Way to Go: No-fault or Fault-based?

The majority of couples who get divorced—in Massachusetts and nationwide—opt for no-fault grounds. There are various reasons for making this choice.

For one, basing a divorce on no-fault grounds is usually less stressful and embarrassing. You'll avoid a constant rehashing of one or more of the marriage's most painful moments, and you won't have to air your dirty laundry in a public forum, which is what a courthouse is. (The law permits anyone to enter a courtroom and watch the proceedings.) And you normally don't have to worry about bringing in witnesses to testify for you, as you might with some of the fault-based grounds, particularly adultery.

As a practical matter, there's ordinarily no benefit to choosing fault-based grounds, and pursuing fault is typically more time-consuming. Remember, the longer your divorce drags on, the more you'll probably pay in attorneys' fees. Additionally, fighting over fault will likely add to the emotional toll a divorce takes, not only on the spouses, but on any children as well.

Massachusetts Residency

To file a divorce complaint in Massachusetts, you have to meet certain residency requirements. Whether you can file immediately or have to wait a period of time depends on the circumstances of your case. Be sure to consult with a reputable and knowledgeable local divorce lawyer about this issue and any other questions you have about a Massachusetts divorce.