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Does Fault Play a Role in the Divorce?

Here in Massachusetts we have several options when filing for a divorce.  We are a “no-fault” state which means that you can get a divorce from your spouse without saying which spouse is to blame for the divorce.  This wasn’t always the case historically.

Before no-fault divorce was commonplace, couples who wish to divorce must allege one of the causes of divorce.  Typically it included accusations of drunkenness or continual intoxication, abandonment, cruel and abusive treatment, incarceration, neglect, adultery, and impotency.  In the past, just like today, sometimes there is no “cause” for the divorce beyond the fact that people no longer get along with each other.  Well, the law didn’t recognize that so they forced parties to essentially lie to get a divorce. If you wanted a divorce, you had to plead your case and fit into one of the boxes.  Imagine having to prove that your spouse was impotent?  If you think divorce is a nightmare now…

Now that Massachusetts has no-fault divorce, or what we commonly cite as “Irretrievable Breakdown of the Marriage” as a cause, most divorce proceed under no-fault.  However, there are circumstances when you might want to allege a grounds for divorce.  Massachusetts has kept some grounds that you could file under:

  • Cruel and Abusive Treatment
  • Desertion
  • Imprisonment
  • Intoxication
  • Refusal to provide support
  • Adultery
  • Impotency

Out of those grounds, the most common are probably Cruel and Abusive Treatment and Adultery.

Since we have no-fault divorce, you might ask then, why is there a need for fault based divorces?  Well, in some rare situations, there might be an advantage.  I will illustrate with the 2 most common fault based grounds.

If someone pleads cruel and abusive treatment, and if those grounds can be proven to a judge, judges are allowed to award a disproportionate share of the marital assets.  And if there are children, if it can be proven that there was abuse, the victim can get full custody of the children and not have to share legal custody of them.

If someone pleads adultery, and if it can be shown that the adulterous behavior wasted a lot of marital assets, then the spouse that was cheated on could recoup those assets and may also get a disproportionate share of the remaining assets in the marriage.

So for these and other reasons, Massachusetts has maintained fault grounds but they are not often used.

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