Client Compass, Divorce Law Monitor

Grounds for Divorce Part II – The Fault Grounds

July 25, 2019


In addition to irretrievable breakdown the marriage, which I explored in my last post, a party seeking a divorce in Massachusetts can do so under one or more of the fault grounds, which require proof of specific facts to warrant a divorce.

The fault grounds under M.G.L. c. 208, sec. 1 and 2 are:

  • Cruel and abusive treatment – To be granted a divorce on the grounds of cruel and abusive treatment, a spouse must prove that the other party acted with such cruelty as to cause injury to life, limb or health, or to create a danger of such injury, or to create a reasonable apprehension of such danger. Cruel and abusive treatment can be found based solely on the use of cruel and abusive words if those words create a reasonable apprehension of violence, or tend to wound feelings to such a degree as to affect the health of party, or create a reasonable apprehension that a party’s health might be affected.  Cruel and abusive treatment is an often cited ground for divorce.
  • Adultery – Unlike cruel and abusive treatment, seeking a divorce on the grounds of adultery is not seen often. The reason is that many judges look with disfavor upon a party seeking a divorce on the grounds of adultery.  Proving adultery does not result in any advantage relative to custody of children, child support, alimony or allocation of assets to the innocent spouse.  Further, in order to be granted a divorce on the grounds of adultery, a party must add their spouse’s paramour as a co-defendant in the divorce action and make sufficient proof of sexual intercourse.
  • Utter desertion – A party may seek a divorce for “utter desertion continued for one year next prior to the filing of the complaint.” Here, a party must prove that his/her spouse left voluntarily and without justification with intent not to return, that he/she did not consent to the spouse leaving, and that the spouse left at least one year ago.
  • Gross and confirmed habits of intoxication – The statute provides that a party must prove voluntary and excessive use of intoxicating liquor, opium, or other drugs. The mere use of drugs or drinking of alcohol on occasion is not sufficient, but rather the use must be excessive and habitual, and must continue up to the date of the filing of the complaint for divorce.
  • Non-support – A party can seek a divorce if a spouse who has sufficient ability, grossly or wantonly and cruelly refuses or neglects to provide suitable support and maintenance for the other spouse.
  • Impotency – Impotency as grounds for divorce remains in the statute, though there are no recently reported cases involving impotency. In 1906, a husband was granted a divorce when sexual relations were not possible due to a medical condition suffered by the wife. Impotency has no relationship to bearing children, but relates solely to the physical ability to engage in intimate relations.  Inability to bear children is not grounds to seek a divorce in Massachusetts.
  • A prison sentence of 5 or more years – A party may be granted a divorce on the grounds that his/her spouse has been sentences to serve 5 or more years in prison.  A later pardon or reduction in sentence will not “restore such party to his or her conjugal rights.”

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