Massachusetts divorce lawyer Jason V. Owens reviews the history of “no fault” divorce and reviews the practical implications of “no fault” divorce in Massachusetts.
In 1969, California became the first state to adopt “no fault” divorce. Throughout the 1970’s, the other states rushed to follow California, enacting their own no fault divorce statutes at a brisk pace. Depending on which researcher you ask, Massachusetts adopted no fault divorce in either 1975 or 1976, putting in squarely in the center of the national trend that started in California. (One interesting outlier was New York, which held out until 2010 before finally following the trend).
What is the difference between a fault divorce and a no-fault divorce? In a no-fault divorce, the parties are not required to prove which party was at “fault” for the divorce; they are only required to prove that the marriage has broken down irretrievably or that the couple has irreconcilable differences. In a “fault” divorce, the Plaintiff must prove that the Defendant has committed a wrong that allows the Plaintiff to get a divorce. Many people think that a fault grounds divorce gives the Plaintiff an advantage in getting property division or alimony; however, this is not generally the case. The Court must consider the same factors to decide these issues in both fault and no-fault divorces, and seeking a divorce on “fault” grounds generally creates needless complication compared with a no-fault filing.
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Prior to the “no fault” revolution, parties trying to reach an amicable divorce settlement were forced to engage in an elaborate kabuki dance, in which the parties colluded to provide evidence meeting the minimum standards for proving “cruelty” or “adultery” without injuring either spouse’s feelings or reputation too seriously. Lawyers were paid to concoct bizarre legal theories such as “collusive adultery”, all designed to offer the minimum level of proof to establish the “fault” required for a judge to allow a divorce. Because the judge had to find fault with at least one party in the bad old days, lawyers and judges had to twist themselves into rhetorical knots to place blame on a party without inflaming anger and bitterness. The result was a rather silly kabuki dance.
Today, “fault” divorce laws remain on the books in many states, including Massachusetts, although they are rarely invoked. Indeed, on those rare occasions in which a party does seek a divorce on the grounds of cruelty, abuse or adultery, judges will routinely urge the party to consider amending their complaint to include a separate count for irreconcilable differences. Why? Because a failure to include a count for irreconcilable differences requires the court to make specific findings of fault in order to allow a divorce agreement. In other words, the court must take testimony find that one party was cruel, abusive or adulterous before allowing the Separation Agreement.
Sometimes a spouse feels they simply must file their Complaint for Divorce on fault grounds, despite their attorney’s attempts to dissuade them. It is possible to “have it both ways”: by filing for divorce on separate counts of “fault” and irreconcilable differences, an aggrieved spouse can still convey their unhappiness by filing on fault grounds — while avoiding a scenario in which the parties are locked into proving “fault” even after reaching an agreement. If the case goes to trial, the spouse can pursue the “fault” count. If the case settles – and 99% of cases settle before trial – the count for irreconcilable differences permits the parties to enter an agreement without needing to prove “fault”. Alternately, a spouse who files on “fault grounds” can always amend their “fault” complaint to a “no fault” complaint with a simple motion immediately before the Separation Agreement is presented to the judge.
About the Author: Jason V. Owens is a Massachusetts divorce lawyer and Massachusetts family law attorney for Lynch & Owens, located in Hingham, Massachusetts.
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