None of us, typically, wish to see a marriage fail and end in divorce. However, there are many times when divorce is the best option. I always attempt to persuade my clients considering divorce to attempt as many options available to them as possible prior to filing for divorce in Massachusetts, including: couple’s counseling, religious counseling, individual therapy, group support, etc. Still, if these options are not working, divorce may be the best option available.

Should I File for a Fault-Based Divorce or a No-Fault Based Divorce in Massachusetts?

Many people think that Fault Based Divorce has been done away with in Massachusetts. This is not the case, however, as it is possible to file for divorce on the grounds of infidelity, incarceration, abuse, neglect, and several other categories. Although it is technically possible for file for a fault-based divorce in Massachusetts, such grounds for filing for divorce are rarely done. First, it can be very difficult and expensive to prove many of the fault-based divorce grounds. Second, the Massachusetts court system is so used to conducting no-fault divorces that fault divorces can raise the specter of suspicious motivation on the part of the complainant, particularly in the eyes of a judge.

No-Fault Divorce, on the other hand, is fairly straight-forward and accepted manner of filing for divorce in Massachusetts.

1A Divorce

A complaint for divorce under section 1A of the Massachusetts General Laws allows a couple to file together for divorce under what is known as a joint petition for divorce. Each party to the marriage will cite the irretrievable breakdown of the marriage, in an affidavit, as the cause of the dissolution of the marriage. The parties will submit a separation agreement to the court, and this agreement will be used as the basis for how property will be divided among the parties, how child care will be resolved, who can make legal and other decisions on the behalf of the children of the marriage, and many other important issues.

The court will review all documents submitted and make a judgment of divorce. Then, once 120 days have passed, the divorce will be finalized.

1B Divorce

Under a similar statute as that cited above, a party to a marriage may wish to obtain divorce and the other party may not, or may be undecided or ambivalent. In such cases, the complainant files a 1B divorce under the appropriate Massachusetts statute and the process of divorce begins. In a 1B divorce, and in a 1A divorce, the parties must make certain financial disclosures to one another’s attorneys within a specified amount of time. But, a 1B divorce typically takes much longer than a 1B divorce because the parties are not in agreement and the discovery process (a back and forth among attorneys through their clients to obtain credible information) must begin. Discovery can sometimes be expensive, but it is typically a necessary evil, as neither side is willing (often) to openly share financial information with the other party.

The discovery process will continue and a hearing will be set. It is the goal of the court, and should be the goal of the attorneys at this point to come to a separation agreement and submit that to the court for approval. However, contention over what is a reasonable allocation of currently held assets, future earnings, alimony awards, child support, and many other issues after the marriage become contested, hot button issues that are ultimately resolved by the court when the parties cannot reach agreement.

Fault Based Divorce in Massachusetts

In a different article, I reviewed the grounds for fault based divorce in Massachusetts. While it is possible to obtain a divorce based upon the fault of the other spouse, it is often not advisable due to expense and court prejudice of this form of divorce. Still, there are times when a fault based divorce solution is the best option for a Massachusetts divorce filer, particularly, in cases of extreme and clear abuse of one spouse.

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