The Basics

When beginning the divorce process in Massachusetts, it is important to answer two key questions. First, is the divorce contested or uncontested? Second, is the divorce at-fault or no-fault?

In answering these questions, couples can gain a better understanding of what awaits them in the legal system as they begin this difficult process.

Contested or Uncontested?

The question of whether a divorce is contested or not comes down to whether spouses have been able to come to an agreement on the terms of their separation before filing for divorce.

In an uncontested divorce, both parties have agreed ahead of filing divorce on the division of property, alimony, child support, and child custody. They may have worked this out individually, through their attorneys, or in professional mediation. The couple can then jointly file for the dissolution of their legal union. If all necessary documentation is filed then, their divorce is a Section 1A divorce, named for a provision of Chapter 208 in the General Laws. If six months pass without the filing of all paperwork, their divorce is governed under Section 1B of the same chapter. For uncontested divorces, this difference in sections is largely technical.

An uncontested divorce is automatically considered no-fault, which we will discuss further in the next section.

A contested divorce, however, is one in which there is no full agreement on divorce terms before the petition is filed. Almost all contested divorce cases are filed under Section 1B. Contested divorces may be filed as no-fault, but only contested divorces can be filed on the grounds of fault.

Fault or No-Fault?
In a no-fault divorce, one partner is not seeking to place the blame for the divorce on the other. A no-fault divorce cites irreconcilable differences between the couple as opposed to bad behavior, violating the contract of marriage, by one of the partners. A vast majority of cases are filed as no-fault divorce. As stated above, an uncontested divorce is always considered no-fault, whereas a contested divorce may be at-fault or no-fault.

The Commonwealth of Massachusetts recognizes six grounds for divorce:

• Adultery: This is one of the most common grounds for divorce in Massachusetts. The Commonwealth defines adultery as sexual relations with a person other than one’s spouse, and it is considered a crime. As such, the details of a divorce case involving adultery may be kept private more so than cases based on other grounds. Adultery can also impact settlements on alimony and child support, with extra consideration given to the wronged party.
• Confinement for a Crime: If one partner is sentenced to a jail term of five years or more, then the other partner may file for divorce based on these grounds. If the imprisoned party is later released, even before the end of five years’ confinement, it has no impact on divorce proceedings.
• Cruel and Abusive Treatment: Under the law, this includes but is not limited to verbal belittlement, demands for intercourse or marital rape, and threatening the other spouse with a firearm. Using cruel and abusive treatment as a grounds for divorce allows the possibility of a civil suit against the abusive spouse as well.
• Failure to Provide Support: When one spouse is able to provide for the other but evinces complete disregard for the necessities of the aggrieved part, and has done so “grossly, wantonly, and cruelly,” this may be used as grounds for divorce.
• Impotency: While uncommon today because of the availability of medical treatments, the law defines this as a complete inability to have conjugal relations long-term or permanently.
• Intoxication: When one spouse’s alcoholism or other substance abuse issue is lasting, excessive, voluntary, and provable to the court, intoxication is a grounds for divorce in Massachusetts. If one partner seeks treatment, or the intoxication otherwise resolves prior to filing for divorce, it cannot be used as a grounds for divorce.
• Utter Desertion: When one spouse leaves the other, without the consent of the other spouse, and leaves the residence to reside elsewhere for more than a year, with no intention of ever resuming marital life, this is utter desertion. Intent is important; a soldier deploying on a tour of duty may be gone for more than a year, but has the intention of returning home to resume marital relations with his or her spouse.

What Next?

Presented with this information, you may be feeling more overwhelmed than reassured. We understand. At our firm, we are committed to providing both competent legal counsel and the reassurance you need during this difficult time. Call our office today to discuss your family’s unique situation.