FAULT GROUNDS FOR DIVORCE
In 1975, Massachusetts added statutory language to M.G.L. c. 208 adding Sections 1A and 1B, which provide for the modern a no-fault divorce. Sections 1A and 1B supplement the already existing seven (7) traditional fault grounds by providing for divorce based upon the "irretrievable breakdown” of the marriage. While the term "irretrievable breakdown" is not defined by statute or case law it typically denotes a marital relationship disintegrated beyond salvage or restoration.
A hundred years or so ago impotency or adultery were the only choices for having grounds for divorce. Then the seven (7) "fault" grounds were eventually instituted.
Up until 1977, six of those grounds were available to a husband (excepting nonsupport which was not available to be charged to a wife, which is basically neglectful action towards children. However, in 1977 either spouse was chargeable with nonsupport.
Today, Mass. recognizes the seven (7) fault grounds which can be charged in addition to having an “irretrievable breakdown”, the only real difference is that any chosen fault ground must be proven as opposed to IR which does not, and those are:
1. Adultery;
2. Impotency;
3. Utter desertion (for one year prior to the filing of the complaint);
4. Gross and confirmed habit of intoxication caused by voluntary and excessive use of liquor, opium and/or other drugs;
5. Cruel and abusive treatment;
6. Gross or wanton and cruel refusal or neglect to provide suitable support and maintenance for a spouse by a spouse who is sufficiently able; and
7. A criminal sentence and/or confinement for life or five (5) years or more in a federal penal institution or penal or reformatory institution in Mass. or in any other state.
Further explanation of the fault grounds are:
1. Cruel and Abusive Treatment
This is probably the most common fault ground and it has much common case law to back it up. There has to be good credible and admissible evidence of at least several such acts which is usually presented via testimony (although a single isolated act could be sufficient if compelling enough such as a serious incident of domestic violence.
Both physical and mental cruelty can be held to be sufficient including where words wound feelings or emotions affecting your health or create reasonable apprehension such as making you severely emotionally upset. However that is all precluded whenver you act out in self-defense.
Also, if a divorce is uncontested and you are claiming cruel and abusive treatment proof of such is not going to be as great as if your divorce was contested. Your lawyer should always select the incidents to be presented to the Court.
2. Utter Desertion
This must continue for at least one year prior to the filing of your complaint:
The basic elements to show are where:
(i) he/she left voluntarily;
(ii) he/she left without justification;
(iii) there was no intention of returning upon departure;
(iv) there was no consent to he/she leaving;, and
(v) he/she did not cohabit with you for at least one year prior to the complaint filing.
Exactly what circumstances constituting the leaving without justification element are not really well defined and a party may be considered "deserted" even where the other spouse never physically leaves the marital home (for ex. exclusion from your immediate or extended family or activities or refusing to take back after leaving the marital home).
3. Adultery
Adultery simply occurs whenever a married person has sexual intercourse with another person not his/her spouse. The other person cannot be included or named in the complaint.
4. Intoxication
This fault ground is for gross and can be confirmed habits of intoxication caused by the voluntary and excessive use of intoxicating liquor and/or other drugs.
This also requires proof such as:
(i) the person is grossly habitually intoxicated;
(ii) the intoxication is voluntary; and
(iii) the intoxication is the product of excessive use of liquor and/or other drugs.
The mere use of drugs and/or alcohol is not sufficient as there must be excessive use over time which becomes habitual and you can prove by credible evidence (only severe and long-term problems are sufficient).
5. Impotency
Impotence is inability to have sexual intercourse not to be confused with sterility and is very a rarely used fault ground.
6. Nonsupport
Another rare fault ground is a gross, wanton and cruel refusal or neglect in providing for support (this can also be a felony criminal charge if serious enough). There must be:
(i) severe and cruel neglect; and
(ii) sufficient ability to pay support.
To counter this a defendant must show an income sufficiently lacking whereas the plaintiff must show a serious injury to life, limb, health or the danger of such or a reasonable apprehension of such while continuing to live together.
7. Confinement to Prison for Five Years or More
Where a spouse is sentenced to or confined for life or at least five (5) years or more in a federal or state penal institution (a sentence for 3 -6 years is sufficient). It is not necessary to wait for complete service of the term.
A fault ground can be used if there can be no settlement by way of an irretrievable breakdown and the fault ground allows an option to pursue a different case. You should always identify any fault grounds within the divorce complaint and if it becomes desirable it can always be later removed by amendment.
Also, a defendant can raise defense(s) to the divorce complaint through an Answer and Counterclaim or Motion To Dismiss (based on one or more statutory grounds)within twenty (20) days following the date of service.
Overnight Divorces
Note: some places such as the Dominican Republic may offer basically what is an “overnight divorce” where both parties mutually consent in seeking an immediate dissolution of the marriage. For example, this can happen where a respondent spouse consents and executes a valid Power Of Attorney allow his/her token appearance at a foreign court. Then such a divorce if granted can basically be immune from a later attack on the grounds of its invalidity.
Any voluntary participation in such a divorce is generally inadvisable whenever there are minor children involved as they presumably do not participate and any foreign order pertaining to them (such as custody, visitation or support) is then going to be subject to challenge. A foreign court has no legal jurisdiction with regard to custody, etc. issues pertaining to the children.
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