Fault vs. No Fault Divorce: What’s the Difference?

The trend towards adopting a no-fault divorce option hit Massachusetts in the late 1970s, having started in California in 1969. With both options still on the table when a couple gets divorced, it begs the question, what is the real difference?

Before no-fault divorce was allowed, fault-based divorce created unnecessary tension and anger in what could have been an otherwise amicable process. Parties had to prove that there was one side who could be blamed for the breakdown on the marriage – even if both parties genuinely wanted a quick divorce and a fair division of assets.  This approach incentivized mudslinging as alleged conduct could alter the outcome of a divorce.

While fault-based divorce is still still an option in Massachusetts, there are many reasons not to pursue this approach:

  1. Fault-based divorce requires the party alleging fault to prove the underlying facts to the Court’s satisfaction. This means providing evidence for the grounds for the divorce, such as proving that one party had an affair or misused marital funds. Gathering such evidence is not only difficult, but it can also prolong the divorce process, which in turn causes it to be more expensive and emotionally taxing.
  2. Fault based divorce can operate to needlessly complicate the issues presented in the divorce. When deciding property division and other issues, courts will consider the same factors regardless of whether the divorce was filed as a fault-based or no-fault divorce. In short, a party’s bad behavior can be largely irrelevant. As a result, presenting evidence to prove cruelty or abuse, for example, distracts the judge from making the best and most efficient decisions on issues such as child support or alimony payments.
  3. Making the other party look bad isn’t going to give you much of a leg up in the process. Judges have heard it all, and they are already very busy with a voluminous caseload. It is not in the best interest of judicial economy to ask the court to determine whether or not a husband or wife cheated on the other – especially when the same divorce can be achieved under the no-fault option without burdening the court with this contentious evidence.

That being said, fault can sometimes come into play (in a nofault divorce) when, for example, a spouse has disspitated assets in furtherance of an extramarital affair.  . Massachusetts courts have held that  dissipated assets spent on an adulterous relationship can be taken into account when calculating alimony and dividing marital assets.

For more information on fault-based vs. no-fault divorce, or to schedule a consultation with our experienced family law attorneys, please call Levine-Piro Law, P.C. at 978-637-2048 or email us at office@levinepirolaw.com.