Grounds for Divorce – “Fault” v. “No Fault”

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Parties to a divorce often have difficulty filing for divorce under no fault grounds (Irretrievable breakdown of the marriage), particularly if they feel wronged in one way or another by their soon to be ex-spouse. Filing a divorce under irretrievable breakdown is not an admission that there was no wrongdoing on the part of the other spouse, or that the other party should not be penalized in some manner when it comes to the division of the marital assets. Filing under irretrievable breakdown simply means the marriage is over for one or both of the parties and neither party’s conduct was so extreme as to warrant filing for divorce using one of the available fault-based grounds. The majority of divorces in Massachusetts do not contain fact patterns which warrant or require the filing of a Complaint for Divorce on fault-based grounds.

In addition to Irretrievable breakdown of the marriage, the following fault-based grounds are available for a party to allege in filing for divorce:

  • Adultery;
  • Impotency;
  • Desertion of at least one (1) year;
  • Gross and confirmed habits of intoxication;
  • Cruel and abusive treatment;
  • Grossly or wantonly and cruelly refusing or neglecting to provide suitable support and maintenance; or
  • Imprisonment of more than five (5) years.

Unlike filing under the grounds of irretrievable breakdown (no fault), the Court may not grant a Divorce when a Complaint is filed using one of the above referenced “fault based” grounds. Filing for divorce under “fault” based grounds requires the moving party to prove to the court that all of the elements of the particular grounds are met.

If you are considering filing for divorce, whether under fault-based grounds or under the grounds of an irretrievable breakdown of the marriage you should consult with an attorney who concentrates in divorce and family law prior to filing.

The Perfect Client is there to Help Themselves Through a Divorce

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Divorce is messy, overwhelming, scary, and hard. A qualified attorney can help clients navigate the process, but the most successful divorces occur when clients help themselves. Here are the things we strongly recommend to anyone facing or currently undergoing a divorce. We are certain it relieves the burden-both long and short term- of this major life event.

 

  1. Engage an attorney you trust, tell your attorney the truth about everything, and follow his/her instructions and recommendations.

 

  1. Understand that divorce is a process and does take time; buckle up for the ride and resist the urge to “just get it over with.”

 

  1. Leave your kids out of it—protect them, nurture their relationship with you and with your soon to be ex and take the high road in all respects—parent them first.

 

  1. Be reasonable. Spending $100 in legal fees to chase $50 is a waste of your time. Be willing to cut your losses where it is practical to do so. Don’t go to trial or fight endlessly over something for which you have a low likelihood of success.

 

  1. Decide what matters most, and negotiate your divorce agreement according to those priorities.

 

  1. Have reasonable expectations. In a good divorce, BOTH parties walk away unhappy. You will not get everything you want. Be prepared to compromise.

 

  1. Reach an agreement before appearing before a judge, if at all possible. Even a bad agreement is better than a good trial. You and your spouse, with the help of competent attorneys, are in the best position to negotiate a divorce agreement that is tailor made to your family. You will not have that luxury with a Judge.

 

  1. Be civil, and don’t burn your bridges. Ultimately the best thing for you, your soon to be ex and your children is for you and your soon to be ex to communicate and be able to deal civilly with one another. The investment you make in having a civil relationship will come back to you a hundred-fold in the future.  Don’t make anyone the bad guy—even if they deserve it. Civility is a huge investment in reaching resolution and staying out of Court both now, and in the future.

If you’re facing a divorce and in need of legal support, contact RFC today.

 

Debunking Myths: 5 Frustrating Realities About Divorce

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  1. There are no punitive damages. Not for extra-marital affairs, not for being the spouse seeking the divorce, and generally not for other conduct unless it has a significant impact on the health or finances of the parties or children.

 

  1. What goes around comes around. If you disparage your spouse to your children and to others in order to cause pain to your spouse, it is likely to cause significant long term pain to your children, and ultimately to you as well, causing wounds which may never heal. More about how to handle divorce with your children in Silver Linings, the book.

 

  1. Alimony is gender neutral. For the successful higher earning men and women of Massachusetts, you may pay alimony to your soon to be ex in a divorce.

 

  1. You can’t have it both ways. An equitable divorce in the eyes of the law may be one in which both parties walk away feeling unhappy.   For every benefit there is generally a corresponding burden. Your idea of “fair” may not comport with the Court’s view of fairness.

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  1. You can’t “stop” a divorce. We have no fault divorce in Massachusetts.   If one spouse wants a divorce, a divorce will be granted, even over the objections of the other.

Separating From Your Spouse: Legal Separation, Divorce, or Annulment?

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Which One is Right for You?

Realizing that your marriage has ended is a difficult decision. In Massachusetts, you have two alternatives to an official divorce, and we at RFC take care to help our clients understand the benefits and disadvantages of each option they have available. Here are two alternatives to filing for divorce—and some of the things to know before choosing a path.

Legal Separation, or Separate Support in Massachusetts

Clients sometimes ask whether a “legal separation” is a viable option, oftentimes searching for a less permanent trial period to determine if their marriage is truly over. However, Massachusetts does not recognize “legal separation.” Instead, individuals in the Commonwealth have the option to file a Complaint for Separate Support if the client and his/her spouse are living apart due to a justifiable cause like abuse, adultery, or desertion. A Separate Support agreement is different from divorce in that it will not end the marriage, but will merely provide for a spouse’s financial support while the parties are living separate and apart.

While a Separate Support agreement may be an ideal situation for some, it is typically not the most ideal method of moving a divorce forward. After receiving an Order or Judgment for Separate Support, an individual will need to essentially start over and go through a similar process to obtain a permanent divorce. Further, there are no protections relating to property rights in a Separate Support action, and the length of marriage continues, which could impact alimony calculations if and when the couple gets a divorce.

Filing for divorce is not permanent until the case goes to Judgment; the parties may reconcile and dismiss the Divorce Complaint at any time prior to Judgment.

Annulment

A Complaint for Annulment is a request that the Court find your marriage was never legal. Annulments are not common in Massachusetts and only apply in limited circumstances. To grant an annulment, the Court must determine that your marriage is either “void,” or “voidable.” Annulments are not quicker nor easier than filing for divorce.

A marriage can be deemed ‘void’ if:

  1. You were already married to someone else when you got married; or
  2. You marry a close relative, either by blood or marriage.

Additionally, sometimes a marriage may be deemed “voidable,” for the following reasons, although not guaranteed:

  1. One of the spouses did not have the mental capacity to consent to marriage at the time
  2. One of the spouses is not physically capable of sexual intercourse
  3. One of the spouses was not old enough to get married
  4. There was fraud involved in initiating the marriage.

While it is a personal, and often times very difficult decision to file for divorce, unfortunately the Separate Support/annulment processes are not any less complicated options. Typically, divorce is the only means to properly uncouple yourself from your spouse. Whatever your circumstances, you should speak with counsel prior to filing any Complaint to ensure that you fully understand your options. Questions about how to proceed? Our attorneys at Ryan Faenza Carey are always available for consultation. Contact us today.

Restraining Order or Not: How you can protect yourself from abuse, stalking or harassment in Massachusetts

A co-worker that you hardly know suddenly begins acting hostile towards you. One day, out of the blue, she threatens to beat you up. Another day, she screams at you and gets in your face. You become scared and upset and you feel things are escalating. Soon, you find all four of your tires slashed.

What do you do? You discuss the situation with a friend and she tells you to go get a domestic violence restraining order. But that requires several things, one of which is that you demonstrate to a judge that you and the person threatening to harm you have been involved in a substantive dating or engagement relationship, or are or were married, or that you are or were residing with the person, or that you had a child in common with him/her. Clearly, that is not the case here with your co-worker.

Does that mean there is no way you can be protected? No. It does not. In 2010, Massachusetts enacted a law similar to the law that allows a judge to issue a domestic violence abuse protection order. The law, known as the harassment prevention law gives protection to victims of abuse, stalking or harassment where the requirements of the other law are not satisfied. So, which one is appropriate for you if you are being abused or harassed?

The attorneys at Ryan Faenza Carey can assist you in pursuing the right legal action to ensure you have the protection you need. Contact us today for more information.