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Robert P. Murray, Esquire

DIVORCE PROCEDURES

FAULT DIVORCE

or

NO-FAULT DIVORCE WITH AN AGREEMENT

or

NO-FAULT DIVORCE WITHOUT AN AGREEMENT

PART I: WHAT'S THE DIFFERENCE???

FAULT DIVORCE: One party to the marriage blames the other for the marital breakup and files a Complaint against the other. The party filing the Complaint is the "Plaintiff" and the other spouse is the "Defendant." Essentially, there are seven (7) grounds for a fault divorce in Massachusetts. They are: 1.) Adultery; 2.) Impotency; 3.) Desertion for one-year or more; 4.) Gross and confirmed habits of intoxication; 5.) Gross and wanton refusal to provide suitable support; 6.) Sentence or confinement for life or for five (5) years or more in a Federal or state prison; and 7.) a catch-all basis commonly referred to as Cruel and Abusive Treatment. By far, the greatest percentage of fault divorces filed today are based upon this last reason -- which need not include physical abuse, but can consist of mental abuse alone. A fault divorce can be "contested" or "uncontested" and is governed by the provisions of Massachusetts General Laws Chapter 208 Section 1. Occasionally, during the course of this type of divorce action, the parties are able to arrive at a mutually acceptable Agreement over various marital issues, and the action is converted to a No-Fault Divorce with an Agreement, and the case will then proceed on that basis.

NO-FAULT DIVORCE WITH AN AGREEMENT: Both parties have arrived at a mutual understanding that, for a variety of circumstances, the marriage is effectively over. Neither party wishes to blame the other for this breakdown, but rather they each agree that he and she are better off separating and terminating their marriage bonds. No reason must be given for this breakdown other than both parties must acknowledge that the marital relationship has disintegrated and each party wishes to move on with his and her respective lives. This marital disintegration is referred to as an "irretrievable breakdown of the marriage" and the provisions of Massachusetts General Laws Chapter 208 Section 1A govern the procedures to be followed. This type of divorce is commonly referred to by the Courts and by lawyers as a "1A divorce."

The most significant feature of this type of divorce is that an Agreement has been reached between the parties regarding all issues involved in a marital dissolution. A well drafted Agreement should cover all issues, including but not limited to: child custody, visitation, support, medical and/or dental insurance, property division (who gets what), liability for outstanding debts (who pays for what), and many other matters. For a more detailed listing of such issues, see Divorce Agreement Checklist.

In addition, in this type of divorce action, no Complaint for divorce is necessary -- no one is blaming the other. Instead, a Joint Petition for divorce is filed.

NO-FAULT DIVORCE WITHOUT AN AGREEMENT: In this type of divorce action, which is governed by Massachusetts General Laws Chapter 208 Section 1B (hence the term "a 1B Divorce") one of the parties has determined that the marriage is, for all intents and purposes, over. However, he or she does not have sufficient grounds for a fault divorce or, even if he or she does have grounds, he or she does not wish to blame the other. He or she is, however, insistent upon getting a divorce, while the other spouse either does not want a divorce or simply won't discuss the matter. As a result, no Agreement has been reached between them regarding the various marital issues. In this instance, a Complaint is necessary, however no blame is placed upon the Defendant. Rather, the Plaintiff simply states that he or she has determined that an irretrievable breakdown of the marriage has occurred. Again, often during the pendency of this type of divorce action, the parties are able to negotiate a mutually acceptable Agreement and, if so, the case may be converted to a No-Fault Divorce with an Agreement, and will proceed on that basis.