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Do I need to have a reason to get a divorce?

 

Do I need to have a reason to get a divorce?

You need to choose a "grounds" (legal reason) for your divorce. One grounds for getting divorced is that you simply do not get along with your spouse anymore and you do not want to be married. You can always get a divorce if you want one, no matter what your situation is.

What are the different grounds for divorce?

There are two "no fault" grounds and seven "fault" grounds. The "no fault" grounds means that the marriage needs to end but neither person is to blame. The "fault" grounds mean that one person did something so wrong that the marriage needs to end.

"No fault" grounds

In Massachusetts, the "no fault" grounds for divorce is called "Irretrievable Breakdown of Marriage." There are two kinds of irretrievable breakdown divorces. They are called "1A" and "1B," because those are the sections in the Massachusetts divorce law that apply.

    1. 1AIrretrievable Breakdown, both spouses file together:You and your spouse file for divorce together. You agree on all of the decisions you have to make in the divorce, like child custody, support, money, and property.
      1. You both write and sign a statement that says you swear the marriage is over. This statement is called an "Affidavit of Irretrievable Breakdown of the Marriage.
      2. You and your spouse make a separation agreement and sign it in front of a Notary Public. (You can find a Notary Public at a bank).
      3. You file the
        1. "Joint Petition for Divorce,"
        2. Affidavit of Irretrievable Breakdown of the Marriage, and
        3. the notarized separation agreement in the Probate and Family Court.
      4. You can ask for a hearing date when you file your papers. You do not have to wait.
      5. Both spouses have to go to court for the hearing. At the hearing, the judge makes sure you agree and that everything is fair.
    2. 1BIrretrievable Breakdown, only one spouse files: If you and your spouse cannot agree on everything, you can file this complaint by yourself. It does not matter if your spouse wants a divorce. If you want one, you can file this complaint.

Once you file, you must serve the Domestic Relations Summons. You need to wait six months after filing the papers before you can ask for a trial date. But you can file motions for temporary orders with your complaint and have them heard within ten(10) days.

You can get the divorce even if your spouse does not show up for the hearing. If you do not have an agreement, the judge will decide things like support, custody, visitation, and what happens to your property.

"Fault" grounds

There are 7 "fault" grounds for divorce. With a "fault" grounds, one spouse files for the divorce and blames the other spouse for the end of the marriage. Although there are several fault grounds, "cruel and abusive treatment" is the one that survivors of domestic violence use the most.

You can ask for a hearing 21 days after the sheriff or constable serves your spouse with the Domestic Relations Summons and the Complaint for Divorce. You can get the divorce even if your spouse does not show up for the hearing. After the judge hears your case, the court issues a Judgment of Divorce Nisi. The divorce becomes final 90 days after Judgment of Divorce Nisi.

The "fault" grounds for divorce are:

    1. Cruel and Abusive Treatment is the most common fault grounds for divorce. You need to show that your spouse did something on purpose that hurt or upset you. Physical abuse is cruel and abusive treatment. Emotional abuse is cruel and abusive treatment if it caused you physical harm (made you sick). For example, his drinking and staying out all night caused you headaches and stomach problems.
    2. DesertionYou will have to show that your spouse:
      1. left you,
      2. has been gone at least a year, and
      3. is not planning to return.
      4. You will also have to show that he left on his own, you didn't agree and he did not have a good reason to leave.

In some cases, there is desertion even though the spouse never physically left the home. In those cases, the judge has to look at the facts of the case to see if it amounts to desertion.

  1. Gross and confirmed habits of intoxication means that your spouse has a pattern of using a lot of drugs or alcohol. You have to prove that your spouse uses "excessive" amounts of (too much) drugs or alcohol, and that he does it on his own without being forced. You also need to prove that he does this regularly, rather than just every once in a while.
  2. Gross or wanton and cruel refusal or neglect to provide suitable support means that your spouse refuses to give you enough money to live on. To use this ground, you have to show that your spouse is able to support you but refuses or fails to do so. You also have to show that this has hurt you physically (you have gotten sick) or puts you in danger of physical harm.
  3. Adultery is not used very often. It means that your spouse had sex with someone else. You will have to prove that your spouse had sex with someone else. This is very difficult to prove. Most people do not use this ground even if they think their spouse had sex with someone else.
  4. Impotency: This means your spouse is unable to have sex. This grounds for divorce is rarely used.
  5. Sentence of Confinement in a Penal Institution: This means your spouse has been sentenced to spend five years or more in prison. This grounds is based on how long the sentence is, not how much time he actually spends in prison.

Produced by an AmeriCorps Project of Western Massachusetts Legal Services updated and revised Massachusetts Law Reform Institute
Last updated February 2010


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