A Divorce Can Go to Trial in Massachusetts

Often, clients are surprised to discover that the contested divorce they are entering into may go to trial. And, as with any trial, key to “winning” is to produce valuable evidence to support your presentation of the facts. It is also common, when a client realizes that trial is imminent, to begin thinking with your attorney about the evidence that must be presented at that trial.

Fault vs. No Fault Divorce

Another area that needs some explanation is that most divorces in Massachusetts are based on the irretrievable breakdown of the marriage rather than for an allegation of a specific fault that caused the divorce. Below you can find an explanation of the various types of fault divorce in Massachusetts.

Fault Divorce

There are generally six grounds for divorce in Massachusetts, although these are not commonly used as the reason for filing divorce, here they are:

Adultery – these grounds can be pleaded where one spouse is having voluntary sexual intercourse outside of the marriage. While it may be possible to prove that such activity has occurred, the decision to take this route in a divorce largely depends upon the financial resources of the spouse alleging adultery as hiring a private investigator, having that investigator provide testimony to the court, and potentially causing the third party to appear in court can be quite expensive.

Impotency

Impotency, in the divorce context in Massachusetts, refers to one spouse’s inability to engage in sexual intercourse either due to a physical or psychological limitation.

Intoxication

Where voluntary and excessive use of alcohol or drugs can be demonstrated by the spouse raising the intoxication allegation, these grounds may be successful in a Massachusetts divorce. However, keep in mind that these grounds can be easily defeated by the spouse with the alcohol or drug problem successfully completing treatment and remaining alcohol or drug free.

Desertion

Where a spouse leaves voluntarily and without a proper justification, without the intent to return to the marital relationship, without the consent of the spouse alleging desertion, and no cohabitation occurred for at least one year prior to the filing of the divorce….desertion as a grounds for divorce in Massachusetts may be successful.

Cruel and Abusive Treatment

Where the spouse alleging cruel and abusive treatment can demonstrate a pattern of abuse, that spouse may be able to prove these grounds for divorce. Not only are these grounds available in a probate and family court under practice of family law, but also under tort law where damages may apply.

Failure to Provide Support

To succeed with these grounds for divorce in Massachusetts, the alleging spouse must demonstrate to a court that the spouse was (a) able to provide support, and (b) failed to provide such support, and (c) that this failure to provide support was gross, wanton, and cruel. To rise to the level of gross, wanton and cruel, a showing that the offending spouse failed to provide for the most basic necessities of life, i.e., food, shelter, clothing.

Confinement for a Crime

A marriage may be dissolved where one spouse has been convicted and sentenced for a crime resulting in prison confinement for five or more years.

Why the No-Fault Divorce is Not Ideal

All alluded to earlier, it is not necessarily an advantage to file for a fault divorce in Massachusetts primarily because doing so forces the petitioner into the position of having to prove the allegation presented to the court. If the process of proving the allegation fails, you may be in the position that you are still married after this long and arduous court process.

The Benefit of Irretrievable Breakdown of the Marriage in a Massachusetts Divorce

By filing for irretrievable breakdown of the marriage, you skip the worry that if you fail to prove one of the aforementioned grounds for divorce you will still be married. Additionally, you will only need to demonstrate one of the following (not an exclusive list):

• Previous attempts at reconciliation have failed
• The severity level of disagreement between the spouses is severe
• The parties are generally unhappy in their marriage
• The parties have attempted counseling without success
• Long term separation

Here is Where Evidence Comes In…

Whether attempting to prove a fault divorce with specific evidence supporting the applicable grounds for divorce or attempting to demonstrate with evidence the reason for irretrievable breakdown of the marriage, having the right evidence in these circumstances is crucial to the success of the case.

A private conversation between spouses may not be admissible in court.

The fact is that, according to Massachusetts General Law 233, s.20, a private conversation between spouses is disqualified under a specific set of circumstances. This means that a conversation between you and your spouse may not be admissible in court in Massachusetts if the conversation was private and the content of the conversation is what is sought to be entered into evidence. Keep in mind the following points:

The conversation must indeed be private to be considered disqualified (without witnesses to the conversation, and must be a conversation – not simply a statement)

• the parties must be married when the statement was made
• the communication must be oral (written communication is not subject to the disqualification)
• a statement that is not part of a greater communication will likely not be disqualified (will be admissible)
• the fact that the conversation occurred may be admissible even if the content of that conversation is not admissible into evidence

What Does This All Mean?

The bottom line in analyzing potentially admissible evidence of a conversation between the spouses that may be helpful to your case is to first determine whether (a) the communication is a short statement that was made as part of a larger conversation, a conversation, or simply a single statement, (b) the communication was made in private or witnessed, (c) the communication is oral or written, and (d) the marital status of the parties when the statement was made.

So, for example, a verbal conversation between you and your spouse while you were alone in the kitchen and still married, and where your spouse admitted that she was having an affair with another man would likely not be admissible as evidence in court. However, in the same set of facts, if your sister witnessed the conversation or the conversation happened in writing, the evidence would`  likely be admissible.

My hope is that this explanation as to the Massachusetts laws regarding fault and no-fault divorce and admissibility of evidence to the court is helpful in increasing the readers understanding as to when important conversation can be used as evidence in court and when they cannot.

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