Fault Grounds for Divorce

1. Adultery

. Voluntary engaging in sexual intercourse by a married person with someone other than their spouse. Also a crime in Massachusetts.
. In order to get divorce, must be proven by:

o Direct evidence, such as observation or testimony
o Circumstantial evidence – evidence which would indicate that the defendant spouse had the inclination and the opportunity to commit adultery so that the inference could be drawn that he/she did it.

. Condonation – “forgiveness.” Bar to divorce on grounds of adultery, unless it happens again. Spouse takes other spouse back in, but if it happens again it will be grounds for divorce again.

* Adultery standing alone is not supposed to be a major consideration in property division, unless significant family assets and/or income has been depleted to support the adulterers affair.

2. Dissertion Elements of Dissertion

. Plaintiff spouse must prove that defendant spouse left without justification.
. The defendant spouse did not intend to return.
. Plaintiff did not agree to desertion.
. Never resumed any marital relations.
. At least one year has lapsed since the defendant spouse left.

3. Intoxication

. gross and confirmed volutary excessive use of alcohol and/or narcotics is grounds for divorce by the other spouse. This is proven by direct evidence such as testimony or medical evidence.

4. Impotence

. Defendant spouse’s inability to have sexual intercourse with her or her spouse. Grounds for divorce or an annulment. Very few cases.

5. Imprisonment

. The sentence of one spouse to five or more years in confinement is grounds for divorce by the other spouse. Few cases of this happen.

6. Non-support – lack of support Must show:

. Defendant spouse has the ability to support plaintiff spouse
. He or she failed to do so
. The failure to do so was either gross or wanton and cruel.

7. Cruel and Abusive Treatment (Most common of all divorce grounds.)

. The intentional affliction of physical or mental suffering on one spouse by the other. Physical Cruelty and/or mental cruelty.
. Proof: some firect or extremely strong circumstantial evidence. Today you don’t need corroborating evidence if uncontested. If contested, then you do.

* Condonation, just like adultery, would bar the plaintiff from obtaining the divorce, unless the abuse happens again after the condonation.