It is important to understand the distinction between no-fault divorce and fault-based divorce, as abandonment issues could come into play in either scenario. Like all states, Massachusetts allows spouses to pursue a no-fault divorce on the grounds the marital relationship is irretrievably broken. Even in a no-fault divorce, both spouses still must work out issues regarding alimony, property division, child support, custody and visitation. If they are able to work out these issues on their own, they would then draft a settlement agreement which, if approved by the court, becomes part of the divorce decree. However, if the spouses are unable to reach a divorce settlement, court intervention is necessary and a hearing is set.
A fault-based divorce, as the name suggests, alleges misconduct on the part of one spouse, giving rise to the need to dissolve the marriage relationship. In a fault-based scenario, Massachusetts law permits spouses to cite abandonment, or "utter desertion," as a ground for divorce. Fault-based divorces are almost always contested; thus, the defending spouse will have an opportunity to accuse the petitioning spouse of fault as well. Filing for a fault-based divorce does not give the filing spouse, also known as the petitioner, any advantage in the proceeding since the judge is required to consider allegations of fault from both spouses. Findings of fault or misconduct by either party become one of many factors considered by the judge when determining alimony, property division or custody matters. Other factors include duration of the marriage, age or health of the parties, earning potential and employability.
If a spouse chooses to pursue a fault-based divorce based on utter desertion, he must prove the other spouse has been absent from the home for at least one year. Also, the petitioner must show that he did not force the other spouse to leave, the desertion was completely voluntary and the absent spouse has not shown any intention of returning home. It is also possible to allege desertion when the spouse has not physically left the home, but has not engaged emotionally or physically with the other spouse; thus, essentially left the marriage. It is up to the judge's discretion whether to award a divorce based on this sort of desertion.
Abandonment as a Factor in No-Fault Divorces
Most spouses alleging desertion do so in a fault-based divorce petition. However, issues of abandonment can also come into play in the no-fault arena, particularly when one spouse's absence has a significant impact on household finances. When a judge is deciding divorce matters, such as child support, alimony or property division, he may factor marital misconduct into the equation even if the parties are pursuing an uncontested, no-fault divorce. If one party can prove the other spouse's continuous absence from the home has caused financial hardship on the remaining spouse or couple's children, the judge may adjust the property division, alimony or child support award accordingly, and as permitted by state law, to make up for the other spouse's choice to abandon the family.
Unable to Locate Spouse
It is possible to obtain a divorce in Massachusetts despite being unable to locate a missing spouse. The judge will require the petitioner to prove that he made a diligent effort to locate the other spouse. This may include contacting the local court and requesting publication of the divorce proceeding in the local paper. If the spouse does not respond, the petitioner may continue with a default divorce. If many years have passed since the spouse was last seen or heard from, the court may presume the spouse has died and continue with the divorce proceeding without requiring additional attempts to notify.