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Monday, October 24, 2011

And It's All Your Fault! MA "Fault" Based Divorce #1: Cruel and Abusive Treatment

Since August 2010, "no fault" divorce has been available in all fifty states. Prior to the creation of "no fault" divorce, an individual seeking a divorce would need to file and prove a "fault"-based ground for divorce, proving to the court that it was the other spouse's fault. This resulted in bringing an often already-contentious relationship into the adversarial forum of a courtroom.

"No fault" divorces shift the focus from who is at fault to facilitating the transition to life after marriage. Basically, the court cares about who gets what, planning for where the kids are, and whether there is a support order (child support or alimony), and less about whether the husband or wife ruined the relationship.

In Massachusetts, "no fault" divorce has been the law since the 1970s, and has become favored by judges and attorneys. However, Massachusetts does retain the following traditional "fault"-based grounds for divorce:

1. Cruel and Abusive Treatment
2. Desertion
3. Imprisonment for More than Five Years
4. Gross and Confirmed Habits of Intoxication
5. Grossly or Wantonly and Cruelly Refusal or Neglect to Provide Suitable Support and Maintenance
6. Adultery
7. Impotency

While only the first two are still used with any consistency, the other five "fault"-based grounds still exist. Over the next few days, we will break down all seven "fault"- based grounds for divorce in Massachusetts, and the advantages and disadvantages of each, starting with cruel and abusive treatment:

Cruel & Abusive Treatment:

Cruel and abusive treatment is the most common "fault"-based ground for divorce in Massachusetts. Prior to "no-fault" divorce, cruel and abusive treatment was used in most divorce cases because the standard is vague enough to allow a divorce when there was no other alternative. Today, cruel and abusive treatment cases usually involve a history of domestic violence.

As with any "fault"-based ground for divorce, this ground could put the defendant spouse on the defensive and will likely prevent settlement. Although cruel and abusive treatment does not require proving a crime, it does require admission or proof of some behavior that amounts to the standard and not too many people will readily admit to being abusive. For these reasons it is usually advisable to plead "no-fault" divorce even when there has been cruel and abusive treatment. Conduct can still be admitted as evidence if relevant to the property division, but by beginning the case as a "no-fault" case you make settlement much more likely.

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