It used to be that you could not get divorced in Massachusetts unless you could prove that your spouse was at fault for the deterioration of the marriage. The most common fault based grounds for divorce include: adultery, impotency, desertion, gross and confirmed habits of intoxication, cruel and abusive treatment, non-support, and incarceration. As you can imagine pleading any of these matters tends to upset the party whom you are claiming is at fault, and putting on evidence of these faults can cause irreparable damage to your relationship, which is especially harmful when there are children involved.
While the fault based grounds for divorce still exist, Massachusetts also allows divorce for Irretrievable Breakdown of the marriage, also referred to as a 1B Divorce. In order to plead Irretrievable Breakdown as grounds for divorce only one spouse has to show that they believe the marriage is irretrievably broken and they no longer wish to be married.
Pleading an Irretrievable Breakdown of the marriage under 1B is still considered a contested divorce. It is contested in the context that the parties have not yet settled all of their marital affairs, like property division and support, and requires some sort of involvement from the courts.
Irretrievable Breakdown is also used in the context of a joint petition for divorce, also called at 1A Petition for Divorce. This, unlike the 1B divorce is an uncontested divorce, which means that at the time the parties file the petition for divorce they have already drafted a separation agreement that divides all marital property, settles custody issues, and any support requirements.
The preference of most divorce practitioners is to file for irretrievable breakdown, as opposed to the various fault based grounds. There are a number of reasons for this, but the two main reasons are that it can sometimes be difficult to prove the fault based grounds and can cost the client more time and money in the long-run, and it’s an impediment to reaching settlement. There is also little to no benefit in pleading one of the fault based grounds.
One of the only tangible benefits to pleading one of the fault based grounds is that you don’t have to wait six months for a hearing on the divorce, like you would if you filed a 1B contested divorce.
Despite the preference of most to cite irretrievable breakdown as grounds for divorce there are times when using one of the fault grounds makes sense. The one most commonly used is cruel and abusive treatment. I use this regularly where there is domestic violence, because I think those clients need recognition from the court about what they have been through. Many times, however, if there is a settlement we will agree to enter the divorce on grounds of irretrievable breakdown.