GUIDE TO THE GROUNDS FOR DIVORCE IN MASSACHUSETTS, WITH EXAMPLES
In Massachusetts, there are two types of divorce cases generally. The first type of case is an “uncontested” case and the second type of case is a “contested” case. This page offers a guide to the grounds for divorce under both an uncontested case and a contested case, which there are many. This page also dispels many of the common misconceptions about the grounds for divorce.
In our practice, we commonly hear the following questions, which may seem familiar to you and your situation:
- My spouse cheated on me, is that grounds for divorce?
- I have been separated from my spouse for years, is that grounds for divorce?
- My spouse abused me during the marriage, can I use that against him/her in the divorce?
- My spouse is an alcoholic, is that grounds for divorce?
- What is irreconcilable differences?
- What does an “irretrievable breakdown” mean?
These are good questions and the information contained in this page should help answer these inquiries.
Uncontested Cases
Uncontested cases are always based on Section 1A or 1B of Chapter 208 of the General Laws. An uncontested case means that the parties agree on all issues to resolve their divorce case. Their marriage is terminated by a divorce decree based on a finding that the marital relationship is “irretrievably broken”, cannot be repaired, and is due to “irreconcilable differences” between the parties. This means that there is no “fault” for the marriage falling apart.
If parties agree to the terms of their divorce before a divorce case is filed, they will file a Section 1A divorce, which includes a joint petition and separation agreement.
If parties agree to the terms of their divorce after a divorce case is filed and it has been six months since the filing, they can still resolve their case under Section 1B by reaching a full, written agreement on all issues.
Over 98% of cases are resolved under Section 1A or Section 1B.
Contested Cases
A contested case is a case that is started because the parties do not have a full, written agreement to resolve all the issues in their case prior to filing. The contested case is almost always based on Section 1B (irreconcilable differences, i.e. no fault) or Section 1, which provides for a variety of “fault” based divorce actions.
One of the very common misunderstandings about divorce cases in Massachusetts
is that filing for a “fault” based divorce will provide you with an advantage in the case.
A “contested” case can ultimately be settled prior to a trial. If no agreement is reached, the court will have a trial on the divorce.
Eventually, the family court judge will have to make a determination or “finding” that the parties will be divorced under some statutory factor. Almost always, the divorce is granted upon irreconcilable differences, which is every Massachusetts resident’s right to obtain a divorce on that “no fault” ground.
There is also a ground for divorce based on one party’s prison confinement for a long period of time.
What are the Benefits of Filing for Divorce Based on “Fault”?
There are few calculable benefits to filing for divorce based on fault. One possible benefit is the satisfaction of knowing that your divorce was granted due to the other party’s behavior and not your own behavior. Another possible benefit is that you just want to make the divorce process more painful for the other side.
What are the Downsides to Filing for Divorce Based on “Fault”?
There are a large number of calculable downsides to filing for divorce based on “fault”. First, you have to prove the fault. This means that if you are seeking divorce based on adultery, for example, you have to prove that your spouse cheated on you. That can be difficult to do. If you are not successful offering relevant and competent evidence to support your claim of adultery, the court can deny your request for divorce, and you will still be married!
Second, proving a case for divorce based on the fault of the other person can be more expensive that based on “no fault”. This is because you have to have evidence to support your claim.
Third, most people do not agree to a divorce based on fault, so it is unlikely that any agreement will be reached before the court holds a trial.
Different Types of Fault with Examples
Below we have provided a discussion of each type of divorce case based on fault and provide examples for each (i.e. when it might be appropriate to bring such an action). The fault based divorce actions include:
- Adultery
- Impotency
- Utter desertion
- Gross and confirmed habits of gross intoxication
- Cruel and abusive treatment
- Failure to provide suitable support
Adultery
In Massachusetts, judgment of divorce may be granted when one spouse commits adultery. This ground for divorce has been utilized since Massachusetts came into being. The Supreme Judicial Court has made a finding that adultery has a destructive impact on the bonds of matrimony.
Notably, adultery is also a crime and therefore it is treated somewhat differently than other causes of action for divorce. The name of the person alleged to have committed adultery with a spouse cannot be inserted into the pleadings unless the court allows that to occur.
Adultery means having voluntary sexual intercourse with another person that is not a person’s spouse. Even if the parties to a Boston divorce case never lived together, adultery may still be pleaded.
It may be difficult to prove adultery. While direct evidence is ideal (i.e. the spouse admits adultery), circumstantial evidence is typically sufficient to prove adultery.
Facts surrounding adultery occurring in a marriage may be relevant to the issues of alimony (spousal support) and property division. M.G.L.A. c. 208, § 34 states, “the conduct of the parties during the marriage” is a factor that must be considered in determining alimony and the division of property. Thus, even if adultery is not pleaded as the grounds for divorce, facts relating to the adultery and cheating by one spouse may still be quite relevant. However, the adultery must be given the appropriate weight and consideration.
An example where adultery may be used as a ground for a divorce include the obvious fact scenario where one spouse has an affair with a third party. The affair must be proven with evidence, such as testimony from a private investigator, admissions by the cheater, or by hauling the third party into court.
Impotency
One spouse’s impotence is grounds for divorce in Massachusetts. (M.G.L.A. c. 208, § 1). There are not very many states that recognize impotence as grounds for divorce. Some states allow an annulment, or nullity action, if one spouse is impotent, including Massachusetts of course. However, if the court grants the annulment, it is as if the marriage never existed. As a result, the non-impotent spouse could not seek alimony or the division of property under M.G.L.A. c. 208, § 34. Thus, there may be an advantage to file for divorce on the grounds of impotence rather than a nullity complaint.
Impotence does not mean that the person is sterile and cannot have children. It means that the person was unable to copulate. The inability to copulate may be the result of a physical limitation or it may be psychological in nature.
Impotence as grounds for divorce in Massachusetts is not greatly used for a variety of reasons, most significantly because long-term impotency is rare.
Utter Desertion
In 1838, the Massachusetts Legislature added the grounds of utter desertion continued for one year next prior to the filing of the complaint for divorce. This means that the defendant abandoned (i.e. no contact) the plaintiff and ceased marital cohabitation without the intent to resume married life with the plaintiff.
The defendant’s intent to abandon must be proven by the plaintiff. For example, if the evidence shows that the defendant tried to resume the marital relationship (reconciliation) in good faith, the plaintiff will not be able to show utter desertion. In another example, if a spouse were to lock the other spouse out of the family residence and refused to cohabitate with him and the parties lived apart for at least one year, then there may be sufficient grounds for utter desertion. However, if the facts also included the parties’ agreement that they should separate, there is probably no utter desertion. Even if the plaintiff encouraged the defendant to leave, there is probably no utter desertion. If the plaintiff was merely silent when the defendant left the marital home, that does not constitute consent. Finally, if the plaintiff’s conduct caused the defendant to leave, there will be no grounds for desertion under the meaning of the statute.
There are four elements required for desertion under M.G.L.A. c. 208, § 22:
- The defendant left voluntarily and without justification;
- The defendant did not intend to return;
- The plaintiff did not consent at the time the defendant left; and
- The defendant did not cohabitate with the plaintiff for at least one year prior to the filing of the action.
Notably, the desertion does not have to mean that there is no contact between the parties. There may be “constructive” utter desertion when one party withdraws from the marital relationship but there are minimal contacts between the parties.
The most common example under this scenario is where a spouse leaves for more than one year and has absolutely no contact with the other spouse.
Intoxication
One of the interesting grounds for divorce under Massachusetts law is the recognition of divorce based on the gross and confirmed habits of intoxication caused by voluntary and excessive use of liquor or narcotics/drugs (of course this does not include doctor-prescribed medication).
The mere use of alcohol or drugs by a married person is not of itself grounds for divorce. If the defendant overcomes his or her problem by the time the divorce action is filed, there will be no basis under M.G.L.A. c. 208, § 1 for divorce.
The concept of recognition of divorce under the grounds of intoxication under this statute requires a showing that the use is voluntary and excessive. The showing of the voluntary nature of the defendant’s consumption of liquor and drugs is typically not difficult of course. However, what determines “excessive” requires a subjective interpretation. Case law has held that even if the use of drugs or intoxicating liquor occurs on an intermittent basis, it still may be “excessive” under the statute if the use is habitual and repeated on a fairly regular basis.
The fact that one party was awarded a divorce on the grounds of the other’s gross habits of intoxication does not itself affect the financial rights of the defendant in regard to alimony or property division. However, as discussed elsewhere on this website, a party’s conduct during marriage is one factor the trial court will consider.
Cruel and Abusive Treatment
Divorce on the grounds of cruel and abusive treatment is one of the first allowed grounds to dissolve a marital relationship in Boston. Cruel as used in the divorce context means the intentional and malicious infliction of physical or mental suffering on another person. Abusive treatment as used in the divorce context means ill treatment of another by coarse, insulting words, or harmful acts. Together, the court must find that the cruel and abusive treatment means such cruelty as caused injury to life, limb or health, or create a danger of such injury, or reasonable apprehension of such danger. If words are used as a basis under the statute, the court must find that the words created reasonable apprehension of personal violence or the words affected the health of the abused party.
While one incident of cruel and abusive treatment is grounds for divorce, such cases are not common. Most of the case law dealing with cruel and abusive treatment details fact patterns involving several incidents or patterns of such abuse.
There are many cases that describe facts sufficient to meet the requirements for divorce based on cruel and abusive treatment. Some examples of facts found to meet the statute include:
- Demands for sexual intercourse even though it negatively affected a party’s health;
- Husband frequently told children that Wife was a fool, and often abused her;
- Wife pointing a gun at Husband putting him in reasonable fear of being injured;
- Spouse threw a picture at other party and forced him to sleep in the attic;
- Wife false accused lawyer-Husband of cheating both in public and private; and
- Spouse continued to call other party at work, affecting their employment.
A defense to a complaint for divorce on the grounds of cruel of abusive treatment is that the defendant was insane and could not tell right from wrong.
Finally, the abused spouse may have the right to sue the abusive spouse under tort law, seeking damages, even though the abuse was used as grounds for divorce in the family law case.
Failure to Provide Support
Under Massachusetts law, there are grounds for divorce when “a spouse being of sufficient ability, grossly, or wantonly and cruelly refuses or neglects to provide suitable support and maintenance for the other spouse.”
The party requesting divorce on these grounds must prove the failure to support. However, they must also prove that the failure was gross, wanton and cruel. This means that the failure to support was excessive in terms of the defendant’s complete disregard for his spouse’s need for basic living materials, including food and other necessities.
The spouse requesting support must prove that the defendant had the ability to provide support and the plaintiff needed support.
Confinement for a Crime
If a spouse has been convicted of a crime and has been sentenced to prison confinement for five or more years, the law allows the court to dissolve that person’s marriage to his or her spouse. (M.G.L.A. c. 208, § 2). The spouse that was not convicted and sentenced to confinement may petition for divorce as soon as their spouse is sentenced.
There is no effect on the divorce even if the sentenced spouse is later released less than five years later, is pardoned, or appeals his case successfully.
The policy behind this ground for divorce seems to be that the spouse who did not commit a wrongdoing should not be punished by having to wait to divorce the wrongdoing spouse, or to hope to obtain a divorce on other grounds.
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For more information about divorce, contact our divorce experts today. We offer a free, private consultation.
We handle many cases in Middlesex County (courthouses are in Woburn and Lowell) and Norfolk County (Canton), as well as Essex County in Salem. We also handle matters in Bristol County, including the New Bedford, Fall River and Taunton courthouses. We also serve all courts in Plymouth County including the Family and Probate Courthouses in Plymouth and Brockton. We have offices conveniently located in Needham, Boston, Hingham and New Bedford.