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.
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, which you can get from the Registry of Vital Records or your city or town
- Complaint for Divorce Form CJD-101
- Record of Absolute Divorce for the Registry of Vital Records (Form R-408)
If you have children under 18
Couples with children under 18 must also:
- Attend a parent education class unless it's waived by the court. You'll receive a certificate after attending.
- Fill out these forms:
File those forms along with your Parent Education Certificate at the clerk's office.
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 to Waive Attendance at Parent Education Program (CJD-444) if you can't attend a parent education program.
- Motion for temporary orders (CJD 400) (i.e. child custody, child support, spousal support, etc.) if you need a court order until your divorce hearing. Fill in what you want the court to order. With this, you also need an Affidavit, where you explain to the judge what happened and when, and a Proposed Order form. Write exactly what you want the court to order on this form.
Step 3: File your paperwork and fees
You'll need to pay the following fees for a fault divorce.
|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.
If you or your spouse lives in the county where you lived together, file the required forms and fees with the Probate and Family Court in that county. 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
The court will give you a summons. The complaint for divorce and summons are served on the other spouse. See service of process of domestic relations complaints for more information on how to do this.
Step 5: Exchange financial statements & write up a separation agreement
After your spouse has been served, 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. Once your spouse (the defendant) has filed an answer, you will need to exchange financial statements and write up a separation agreement.
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 if you and your spouse have issues you can’t agree on. To prepare for a pre-trial hearing, the parties or their lawyers will submit a pre-trial memorandum. This will happen after discovery, which is the process of finding out information from the other party by submitting questions (called interrogatories) to the other party, or by requesting certain documents. You must also decide if you’re going to call any witnesses for the trial.
To go forward without a trial (meaning all the issues have been agreed on), you need to have the notarized, signed separation agreement, financial statements, and parent education certificate (if applicable) filed with the court.
Step 7: Attend a hearing
A hearing can't be scheduled any sooner than 6 months from the filing date unless the court has granted a waiver.
The judge will either accept, reject, or amend the separation agreement at the hearing. If the parties haven't reached an agreement on all of the issues, there will be a trial and the judge will make the final decision. When a judgment is entered, the divorce is finalized 90 days later, after the nisi period has ended. Please see Finalizing a divorce for more information.