In a fault divorce, the person asking for the divorce must prove a specific reason for the divorce. Follow the steps below to get a fault divorce in Massachusetts.
Get a fault divorce
Table of Contents
Step 1: Find out if you can get a fault divorce in Massachusetts
You can file for divorce in Massachusetts if:
- You've lived in the state for 1 year or;
- The reason the marriage ended happened in Massachusetts and you've lived in the state as a couple
To get a fault divorce, you must prove a specific ground(s) or reason for the divorce. These grounds are listed in M.G.L. c. 208, s.1:
- Gross and confirmed habits of intoxication
- Cruel and abusive treatment
- A prison sentence of 5 or more years
The fault divorce process can take longer and be more expensive than a no-fault divorce.
Step 2: Fill out your paperwork
Anyone filing for a fault divorce needs to file:
- A certified copy of your marriage certificate. You can get this from the Registry of Vital Records or your city or town you were married in.
- Complaint for Divorce Form CJD-101
- Record of Absolute Divorce for the Registry of Vital Records (Form R-408)
- Military Affidavit
- A financial statement from each spouse. In a contested divorce, you can file a “Request for a Financial Statement”. This asks your spouse to submit a signed, current financial statement to you and the court within 10 days. You can only make one request for a financial statement in a 90-day period unless there is an order of the court.
If you have children under 18
Some people may also need to file:
- An Affidavit of indigency if you can't afford the fees. See indigency for more information.
- Findings and Determinations for Child Support and Post-Secondary Education (CJD 305) if you don’t think the child support guidelines should apply to your case.
- Motion for temporary orders (CJD 400) if you need a court order right away. The court can enter an order on custody, support, etc. while you wait for your divorce hearing. Write what you want the court to order on the motion form. With this, you need an Affidavit explaining what happened and when to the judge. You also need a Proposed Order form explaining what you want the court to order.
Step 3: File your paperwork and fees
You'll need to pay the following fees for a fault divorce. There are different ways you can pay your fees. You can pay with a bank check or money order made out to the Commonwealth of Massachusetts, cash, or a credit card.
|Divorce filing fee||$200|
|Divorce filing surcharge||$15|
|Divorce summons charge||$5|
How to file
You can file for a fault divorce in person or by mail.
Make sure you file the required forms and fees with the Probate and Family Court in the correct county. You should file in the county where you and your spouse lived together if one or both of you still live there. Otherwise, file in the county where you or your spouse live now. Find your Probate and Family Court.
Step 4: Serve the papers on your spouse
After you file your paperwork, the court will mail you a summons. You will then serve the complaint for divorce and summons on the other spouse. Find out how to do this here: service of process of domestic relations complaints
Step 5: Exchange financial statements & write up a separation agreement
After you serve your spouse, they will likely file an answer. See respond to a case filed against you in Probate and Family Court for more information on that process.
After your spouse files an answer, you must exchange financial statements. You must also write a separation agreement on how you will handle any issues related to your divorce. It’s helpful to speak to a lawyer about the choices you make. If you aren't able to talk with a lawyer, the law libraries and public libraries have examples of separation agreements.
Additional Resources for Step 5: Exchange financial statements & write up a separation agreement
Step 6: Attend a pre-trial hearing
There may be a pre-trial hearing scheduled by the court if you and your spouse have issues you can’t agree on. You will receive a notice in the mail about the hearing.
Both spouses or their lawyers must submit a pre-trial memorandum to prepare. Before the pre-trial, you may want to take part in discovery. Discovery is your opportunity to find out information from the other party. You may request documents from the other party and submit questions (called interrogatories). You must also decide if you're going to call any witnesses for the trial.
If you and your spouse have a signed and notarized separation agreement on all the issues, you do not need a trial. You must have your separation agreement and financial statements filed with the court.
Step 7: Attend a hearing
Unless the court grants a waiver, a hearing can't take place any sooner than 6 months from the filing date. You will receive a notice in the mail with information on your scheduled hearing.
The judge will either accept, reject, or amend the separation agreement at the hearing. If the parties do not agree on all the issues, there will be a trial and the judge will make the final decision. When a judgment enters, the divorce becomes final 90 days later, after the nisi period has ended. Please see Finalizing a divorce for more information.