Skip to main content

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

By
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.
Labels:

Comments

Post a Comment

Popular posts from this blog

What is the purpose of the Divorce Nisi waiting period?

By
In Massachusetts the statutory waiting period after a Judgment of Divorce and before the divorce becomes final (or absolute) is called the Nisi period. After a divorce case settles or goes to trial, a Judgment of Divorce Nisi will issue and it will become Absolute after a further ninety (90) days. This waiting period serves the purpose of allowing parties to change their mind before the divorce becomes final. If the Judgment of Divorce Nisi has issued but not become final yet, and you and your spouse decide you don't want to get divorced, then you can file a Motion to Dismiss and the Judgment will be undone. Although many of my clients who are getting divorced think the idea of getting back together with their ex sounds crazy, I have had cases where this happened. In addition to offering a grace period to change your mind, the Nisi period has three other legal effects: 1. The most obvious effect of the waiting period is that you cannot remarry during the Nisi period, be
76 comments
Read more

New Massachusetts Child Support Guidelines (2021): Big Changes, Little Changes, Typos & some Unexpected Results

By
UPDATE: The court has released a web calculating version of the 2021 MA Child Support Guidelines Worksheet .  It resolves some of the typos referred to below, but the unexpected calculations still apply. Every four years, per federal mandate, the Massachusetts Probate & Family Court revisits the Child Support Guidelines through the work of a Task Force appointed by the Chief Justice.  The 2021 Massachusetts Child Support Guidelines were recently posted.  They take effect on October 4, 2021.    If you are interested in a training on all of these changes to the new Child Support Guidelines: DMTA Presents the 2021 MA Child Support Guidelines Update  – Attend this event to learn the key updates you need to know for your mediation clients. Presented by Justin Kelsey of  Divorce Mediation Training Associates  and  Skylark Law & Mediation, PC . For a full comparison of all the  tracked changes between the 2018 and 2021 Massachusetts Child Support Guidelines you can download a pdf sho
Post a Comment
Read more

Does a Criminal Record affect Child Custody?

By
If one of the parents in a custody case has a criminal record, the types of crimes on their record could have an effect on their chances of obtaining custody. In custody cases the issue is always going to come down to whether or not the best interests of the child might be affected. In the most extreme case, in which one parent has been convicted of first degree murder of the other parent, the law specifically prohibits visitation with the children until they are of a suitable age to assent. Similarly, but to a less serious degree, in making custody and visitation determinations the court will consider crimes that would cause one to question the fitness of a parent. These types of crimes would obviously include any violent crime convictions which could call into question whether the children would be in danger around a parent who has shown themselves to resort to violence when faced with conflict. In addition, drug and alcohol abuse offenses would call into question a parent&#
65 comments
Read more