Skip to main content

And It's All Your Fault! MA "Fault" Based Divorce #2: Desertion

Desertion is one of two "fault"-based grounds for divorce that is used with some regularity in Massachusetts (the other being cruel and abusive treatment). In order to prove desertion, you need to be able to show that your spouse voluntarily left home without justification at least one year prior to filing the complaint for divorce, and has no intention of returning home. The spouse seeking a divorce needs to be able to testify that, during the one year period after his or her spouse left the marital home, there was hope of reconciliation.

Service of the complaint where personal service by a constable is impossible (because the location of the deserting spouse is unknown to the deserted spouse) is accomplished by publishing notice of the divorce case in a newspaper located in the location where the now-missing spouse was last known to reside.

The advantage of pleading "desertion" over a "no fault" divorce is that the act of deserting could warrant an unequal distribution of the assets. If successful, you have convinced a judge that your ex-spouse did not have justification for leaving, but left anyway, and that could result in the Judge awarding you property that they deserted as well.

The disadvantage is that proving desertion is somewhat more complicated than a "no fault" divorce. You must prove the elements of desertion to be divorced on those grounds, and if you fail to prove that the deserting spouse left without good reason, for example, then the Judge could deny your divorce. "No-Fault" divorce is much easier to prove because the evidentiary burden is met when one spouse simply tells the court that the marriage has been irretrievably broken down with no hope of reconciliation.

Comments

Popular posts from this blog

What is the purpose of the Divorce Nisi waiting period?

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...

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

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 Ch...

2024 U.S. Presidential Party Platforms - What are the policy positions that could affect families?

While the laws that affect family formation, marriage and divorce are often made at the state level, there are also many policies and laws at the federal level that affect families and children.  Just some examples from recent years that have impacted families in my mediation practice include changes to the federal tax laws (such as  the elimination of the alimony tax deduction ) and U.S. Supreme Court rulings on same sex marriage and reproductive health rights.  In just over a month, the United States presidential election will have a significant impact on these federal policies going forward, and could choose the next appointments to the U.S. Supreme Court as well. In 2016 and 2020 we shared what each presidential platform said about families and policy regarding family formation and dissolution, and below we'll provide you an update on the 2024 presidential platforms.  As Maya Angelou said, "When someone shows you who they are, believe them the first time."...