What is the difference between a no fault divorce and an uncontested divorce?
Updated: Mar 17, 2021
"Fault” in the divorce world is the basis for a party filing for divorce. In Massachusetts, fault grounds for divorce include: adultery; impotency; utter desertion continued for one year prior to the filing of the complaint; gross and confirmed habits of intoxication caused by voluntary and excessive use of intoxicating liquor, opium, or other drugs; cruel; abusive treatment; and grossly or wantonly and cruelly refusing or neglecting to provide suitable support and maintenance for the other spouse, provided the spouse has sufficient ability to support their spouse; and where a spouse has been sentenced to confinement for life or for five years or more in a federal penal institution or in a penal or reformatory institution. Prior to 1975, Massachusetts required a person filing for divorce to “prove” one of the fault grounds in order for the Court to grant them a divorce. This meant that the filing party had to provide evidence to support their allegations of fault in order to obtain a divorce.
In 1975, Massachusetts adopted a “no fault” statute which eliminated the need to allege and prove fault in order to be granted a divorce. Instead, the filing party can merely allege that there has been an “irretrievable breakdown of the marriage”. In plain language, this means that there is no hope of reconciliation. The alleged breakdown can either be as a result of one of the party’s actions or it may be through no fault of either party. For example, due to the parties developing different life goals over time, their marriage may have irretrievably broken down; no one is at fault, the parties just grew apart over the course of their marriage. The majority of the divorce actions filed in Massachusetts are filed as “no fault” cases.
We are often asked whether filing under a fault ground will result in a greater share of the marital assets or increased support? While there may be certain cases where proceeding under a fault ground would tip the scales in one party’s favor there is no real advantage. In determining property division and support, the Court considers the same factors, whether the case is filed under a fault ground or as a no fault case. While one of the factors considered by the Court is “conduct during the marriage”, it is up to the judge to determine how much weight to attribute to that factor. One can also allege fault during the course of the divorce even though it did not form the basis of the complaint. In that situation, the Court would consider the other party’s bad conduct during the marriage in determining property division and support.
What is the difference between a “no fault” divorce and an “uncontested” divorce? A no fault divorce may be either contested or uncontested. However, an uncontested divorce, by its very definition, proceeds as a “no fault” divorce. In an uncontested divorce, both parties file the divorce action together through a Joint Petition, as opposed to one person filing a complaint for divorce against their spouse in a contested case. In an uncontested divorce, the parties represent in their Joint Petition that the marriage is irretrievably broken down. The parties also file a Separation Agreement which constitutes their “contract” that will dictate the terms of their divorce as well as determine how the parties will handle certain situations in the future. If the parties are unable to agree upon even one issue, such as parenting time or how their personal property will be divided, they cannot proceed with an uncontested divorce. All issues must be agreed upon and addressed in the parties’ Separation Agreement filed with the Court.
Whether or not to file a contested divorce case under a “fault” ground or whether to file a “no fault” complaint is a decision that is best made after consulting with an attorney familiar with the divorce laws. Our firm has decades of experience in the family law arena in Massachusetts. We offer a free 30 minute initial consultation in which the facts of your case can be discussed, as well as a strategy for moving forward. We also offer a flat fee for representation in MA uncontested divorce actions. Feel free to reach out to our office should you need assistance or have questions regarding how to proceed.