There are few issues in life that can be more difficult that obtaining a divorce in Massachusetts. The process of divorce in Massachusetts is long and arduous, and takes a toll on the parties involved, particularly any children involved. Before taking on a divorce, I always counsel my clients to consider whether there are other means to resolve the marital issue. Couple’s therapy, marital counseling, individual counseling, and other methods of ironing out difficulties should, in my opinion, be attempted prior to filing for divorce.

However, there are times when divorce is the only practical option.

My Spouse has Cheated, I Cannot Forgive and Forget, and I Want a Divorce

As the heading to this paragraph implies, there are times when one party to the marriage has made up their mind that divorce is a necessary path to take. Again, after all other options have been considered, if divorce is the final solution, then I will entertain either party’s wish to pursue divorce. Matters can get very heated when one side has cheated on a wife or husband. When infidelity is the root cause of the reason for one party to the marriage wanting to divorce, the subject of filing for a fault divorce often arises.

The Fault Divorce in Massachusetts

It is, technically speaking, possible to file for a fault divorce in Massachusetts. Massachusetts law allows one party to claim that the other party has done one or more of the following as a basis for the grounds for a fault divorce:

• Impotence – one party has sexual disfunction of one sort or another and is unable to engage in any sexual relationship in the marriage.
• Gross and Confirmed Habits of Intoxication – simple, occasional drug or alcohol use is not sufficient, as an example. Instead, the partner to the marriage would need to be involved in severe and regular use and abuse of drugs or alcohol.
• Cruel and Abusive Treatment – to be successful, one party must prove that the other party has engaged in any treatment (need not rise to the level of physical violence) which causes injury or harm to health or creates fear of harm to the health of the victim.
• Adultery
• Neglect or Refusal to Support – If your spouse has the ability to provide support to you but refuses to do so, and you are unable to support yourself, and that such refusal is wanton, gross, and cruel, this fact may be a grounds for divorce in Massachusetts.
• Incarceration – Must be sentenced for a period of five or more years (or life).

Just because something is possible, however, does not mean that it should be done. As I have stated, it is technically possible to file for divorce under a fault grounds in Massachusetts, but it is rarely done. There are several reasons that filing for a fault divorce, even if the grounds for the divorce are true, may be a bad idea.

Proof of Fault

If you file for fault divorce in Massachusetts you will need to prove that your allegation, your grounds for divorce, is actually true. While proving a five-year prison sentence would be a simple matter, consider the difficulty in proving Infidelity. First you will have to serve a copy of the complaint to the other party involved in the infidelity. Next, your attorney will need to spend a great deal of time in the discovery process of the case finding ways to prove that infidelity, to include, witness statements, live witnesses and other documents if the case goes to trial. This part of the process can be expensive, and may be avoided by simply filing for a No Fault divorce. Also, consider the fact that fault divorces are rarely done in Massachusetts courts, and a judge is likely to view the party entertaining the fault based divorce as acting out of a motivation of inflicting some measure of payback to the other spouse. A fault based divorce is made even more suspect, in terms of the motivation of the complaint filing spouse, if children are involved in the marriage. Massachusetts judges called to rule on divorce for a couple are tasked to consider what is in the best interests of the children. It is unlikely that most judges will view dragging the court process out over questions of infidelity as “in the best interests of the children.”

Emergency Considerations

Although, the focus of this article has been to describe why avoiding a Fault Based divorce is typically the best option for the filing spouse, there are times when a No Fault divorce is a good option. In cases where one spouse is being abused by the other spouse, and the abused spouse is able to demonstrate such abuse, it may be a good option to file for a Fault Based divorce. Immediately upon filing for a fault-based divorce where one party has been subject to domestic abuse, you can request a hearing. The typical, No-Fault divorce takes six months for a hearing to arise. The early hearing can allow for issues that may constitute an emergency, particularly to the victimized spouse, to be addressed early in the case.

DISCLAIMER:
The information provided in the pages and posts of this website are for general informational purposes only. The information presented on this site is not legal advice, and no attorney-client relationship is formed by the use of this site.