Divorce Questions and Answers
1. If I think I want to divorce, how can I prepare for it?
Divorce is a big decision and should not be made impulsively, recklessly or without a good deal of thought and investigation. As you probably know, statistics show that 1 in 2 marriages end in divorce. Gather as much information as you can about divorce. Talk to friends. Ask questions. Read books. Go to the Probate and Family Court in your county to observe hearings and trials. Most family court proceedings are open to the public with the exception of "closed" hearings, which are private, sensitive and usually involve children.
2. What about counseling?
Divorce cases can be emotionally charged, so you are encouraged to seek counseling and support before and/or during the process. Don't wait for your spouse to agree to participate in counseling. Individual counseling can help.
If it is safe and there is no violence in the relationship, parents and children may attend sessions together to help reduce the effects of a divorce or custody dispute on the children and to help the family heal emotionally. There are many books available with tips on handling the stress of separation.
Divorce is often a lonely and emotionally draining experience. It is our hope that by getting information and controlling the process yourself, with the support of this information and other people who are going through or have been through the same thing, you will find the experience less painful.
3. Do I need to have a reason to divorce my spouse?
Yes and no. You do need to choose a "grounds," or legal reason, for the divorce that fits the facts of your situation. It is sufficient that you and your spouse don't get along any more and don't want to be married any more.
4. What are the different grounds for divorce?
They consist of two "no fault" grounds and seven "fault" grounds. The "fault" grounds, as the name implies, mean that one person was considered at fault in causing the marriage to end.
5. What is a "no fault" divorce?
A "no fault" divorce is a divorce in which the marriage is broken beyond repair but where neither party is to blame. In Massachusetts, the no fault divorce ground is also called "Irretrievable Breakdown of Marriage." There are two kinds of "irretrievable breakdown" divorces. They are often referred to by the section of the law under which they are found, "1A" and "1B."
- 1A--Irretrievable Breakdown, both parties participate: By Agreement each party swears in an affidavit (a written statement made under oath before a notary public) that the marriage is irretrievably broken, and file that affidavit with a Joint Petition for Divorce, and a Separation Agreement. If this ground is used, both parties must appear in court. There is no waiting period between filing and requesting a trial date. They can request a trial date when they file their petition, separation agreement and affidavit.
- 1B--Irretrievable Breakdown, only one party files: One party files a Complaint for Divorce claiming "Irretrievable Breakdown of Marriage." Whether or not the other party agrees, the plaintiff (the person filing for divorce) can request a hearing six months after filing the Complaint. No affidavit or Separation Agreement is required. The defendant can choose not to appear in court.
6. What are the most commonly used fault grounds?
- Cruel and Abusive Treatment: This is the most common fault ground for divorce. You need to show that something your spouse knowingly did or didn't do caused you harm or upset. Acts of physical abuse support the grounds for cruel and abusive treatment. Sometimes certain forms of mental cruelty may be enough. You have to show it caused you physical harm, for example, his/her drinking and staying out all night caused you headaches and stomach problems. How long it takes to complete a divorce varies with each case.
- Utter desertion continued for one year: Your spouse left the marital home voluntarily and without your forcing him/her to leave. He/she left, has no intention of returning home, and has not lived with you for at least one year before the date of your filing the complaint for divorce.
7. If I use desertion as a ground, what do I have to show?
You will have to show that you did not consent to your spouse leaving the home, that he/she left a year ago and has never returned. You may be deserted even though your spouse never physically left the marital home. The judge will have to consider the circumstances of each case in order to decide whether desertion occurred where the other spouse never physically left the home.
8. What are the other fault grounds?
- Adultery: In Massachusetts, the legal definition of adultery is sexual intercourse outside the marriage. You will have to prove that your spouse had sexual intercourse with someone else. This makes adultery a difficult ground for obtaining a divorce.
- Impotency: This means inability to have sex. This ground for divorce is rarely used.
- Gross and confirmed habits of intoxication caused by voluntary and excessive use of intoxicating liquor, opium, or other drugs: There must be a voluntary and excessive use of drugs or alcohol which has become a pattern.
- Gross or wanton and cruel refusal or neglect to provide suitable support and maintenance for the other spouse: This means that your spouse has refused or neglected to provide support and maintenance for you. To use this ground, you will have to show that your spouse has the ability to pay support but has refused or neglected to do so. You will also have to show that the refusal or neglect will cause injury to your life, limb or health or create a danger of such injury.
- Sentence of Confinement in a Penal Institution: This means your spouse has been sentenced for life, or for five years or more. This ground is based on length of sentence, not how much time he/she actually spent in prison.
Used with Permission and adapted from Northeast Legal Aid http://www.northeastlegalaid.org/
This information is general legal information that may or may not pertain to your particular circumstance. It does not substitute for a consultation with an attorney regarding your specific situation.
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This content was last modified on: 04/08/2016