Seven Fault Grounds
Massachusetts law provides seven fault-based grounds for divorce: adultery, cruel and abusive treatment, desertion (leaving without justification or intent to return), confinement in prison for more than five years, habitual intoxication (excessive drinking or drug use), impotence (inability of one party to have sex) and failure to provide support. In Massachusetts, cruel and abusive treatment -- typically used when one spouse mentally or physically abuses the other -- is the most common fault-based ground, and was used even more frequently when Massachusetts did not have no-fault grounds for divorce.
If you choose to file under one of Massachusetts’ fault-based grounds, you bear the burden of proving the grounds exist. If your spouse denies his misconduct or contests the divorce, you may have to provide evidence, such as testimony or documents, to prove the grounds you alleged. Since this can be difficult, many petitioners choose to file under Massachusetts’ no-fault ground -- irretrievable breakdown of the marriage. Filing a no-fault divorce takes away the need to provide extensive evidence to prove a fault-based ground, generally making the divorce process quicker and less expensive.
If you attempt to prove fault-based grounds, your spouse may use several defenses at trial to dispute the alleged grounds. For example, the defense of connivance says you helped your spouse commit the misconduct upon which the fault ground is based, such as encouraging someone to seduce your spouse so you could use adultery as your grounds for divorce. Or, if you condoned the misconduct by express or implied forgiveness, your spouse can also use that as a defense. If your spouse has a mental illness, he may use insanity as a defense, since an insane person will not be held responsible for his behavior. Before no-fault grounds became available, collusion -- conspiracy between spouses to make it appear as if grounds for divorce exist -- used to be a defense.
Impact of Misconduct
The divorce court may consider your spouse’s misconduct, if proven, when dividing marital property or awarding spousal support, even if the misconduct was not economic in nature. For example, the court may consider your spouse’s infidelity even if it had no impact on your finances. If your spouse involved your children in his misconduct, perhaps by enticing your children to keep secrets about his affair, the court may even consider his misconduct when determining custody. However, the extent of the impact your spouse’s misconduct may have on your divorce may vary between courts.