April '02 - Whose Fault?

        

The two are in a fashionable high-rise apartment in New York.  They are both dressed in formalwear, and each has a mixed drink in their hand.  They are arguing, and she finally yells out: "I want a divorce!"  Lionel Barrymore spins around and, with vile dripping from his tongue, says: "Well, I won't give you one!"  Bette Davis, frustrated, throws her drink at him and storms out of the room.

You've probably seen this or another old movie just like it.  For good or for bad, it was much harder in years past to get a divorce.   In order to do it, one spouse had to prove there was "cause" for one.  You're probably familiar with most causes: adultery, desertion, cruel and abusive treatment, etc.  This meant one party had to produce evidence that the other was a bad person.  While this was good for the private detective business, it made the lawyer's job that much harder.

Massachusetts now allows for divorce on a "no fault" basis.  All you have to prove is that there is an "irretrievable breakdown" of the marriage.  This is much easier.  Even if one spouse wants to contest the divorce, there is little he or she can do if the other says the marriage is broken beyond repair.

But of course a lot of people going through a divorce want to tell the court whose fault it was.  Among other reasons, they feel it is necessary in order to get a good judgment vis-à-vis issues like child custody and property settlement.  This is only half right.  While your spouse's bad behavior during the marriage may affect the outcome of those issues, it is not necessary to go into them in order to get the actual divorce itself.  Instead, the divorce can be granted on the grounds of an irretrievable breakdown, while bad behavior is still preserved for hammering out the logistics. 

So what's the advantage of filing for a no fault divorce?  There are a number of them.  First, you won't be starting your divorce off on the wrong foot.  No divorce is pleasant, but it gets much worse when you set the tone by serving him with a complaint that says he is a wife beater - or her with one that says she is a tramp.  Their natural reaction will be to say the same, or worse, about you.  Your chances of reaching a quick and amicable settlement has now disappeared.

Of course, more than 90% of all divorces do settle prior to going to trial.  So whether it is quick and amicable, or long and hard, odds are you will eventually reach some type of agreement. 

This brings us to the second advantage of filing for a no fault divorce.  Divorces entered by settlement are always on the grounds of "irretrievable breakdown."  Therefore, if you initially filed "for cause" and then reach a settlement, you will have to amend your complaint.  This is more paperwork (and legal fees) that could have been avoided by filing "no fault" in the first place.

Our third advantage of filing for a no fault divorce is that it leaves less for the public to stick their noses into.  In the heat of the moment, you may not have a problem telling the judge what a rotten person your spouse was.  But what about the rest of the world after things have cooled down?  You may be more reluctant then to have the details of your past become a public record.  No fault divorces give the paparazzi less to sink their claws into.

So even if you disagree about the issues of your divorce, and even if you are angry at the other person, it is generally much better to file for a divorce on a no fault basis.  You have not surrendered your right to litigate - just streamlined the process.