I've been married for 6 years in Massachusetts and am about to file for divorce. My husband has substance abuse problems, is unable to hold down a job (he has been unable to contribute financially to the household), has had several run ins with the law and has amicably agreed to a divorce. Is it advised to file an uncontested divorce or an at fault divorce? I am wondering if division of assets is treated differently depending on the grounds for divorce (no fault or at fault). The house is in my name purchased with a downpayment paid for by me (he had little to no income or savings at the time I purchased it - we have separate bank accts). I have a 401k that I have contributed to with my own money. How can i protect my assets from a drug addict during the divorce process?
No fault is the easier.
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Generally, most lawyers advise against filing a fault based divorce. Most of the issues that are dealt with in a fault based divorce can be dealt with in a no fault filing with less acrimony and at less cost. Fault bases divorces tend to end in trial and consequently they are expensive and the results are somewhat more unpredictable then a settlement and often take months longer to accomplish.
If you can get your husband to agree to a settlement agreement that is acceptable to you then filing for an uncontested no-fault divorce is the way to go – fast and economical. The alternative is to file for a contested no-fault divorce. Here the primary issue is the division of the marital estate, custody (if there are children), and support (spousal or child). The issues are examined within the framework of the divorce statutes which offer guidance to what is fair and equitable to the judge who has substantial discretion in the application of the law (see mgl 208 §34). Section 34 sets out numerous considerations in determining the division of marital assets, including: behavior of the parties, ability to obtain future earnings, contribution to the marriage, etc. This where to same issues that would be the focus of a fault based divorce can also be addressed in the no-fault action.
The benefit to a contested no-fault divorce is that it treats trial as a last resort allowing the parties to craft their own agreement, while the fault based divorce anticipates a trial and a court imposed judgment.
Your decision, given the significant assets you have and the behavior of your spouse during the marriage, suggest you need a comprehensive analysis of your specific facts and I strongly suggest seeing an attorney.
This is not legal advice and is not intended to create an attorney-client relationship. You should speak to an attorney for further information.
Divorce / Separation Lawyer
I agree that it is not necessary to file on fault grounds, and the divorce can be granted on the basis of irretrievable breakdown of the marriage. This does not prevent you from raising your arguments regarding division of assets. You should contact an attorney to assist you in this matter. Even of you and your husband agree on all the terms of the divorce, you will need competent counsel to draft the agreement and present the case so that your interests are protected. Best of luck to you.
This answer is intended for general informational purposes, and does not create an attorney-client relationship.
If there is no dispute between the two you you can file uncontested, jointly apply to the court for divorce. However, it may be safer to file a contested Complaint which you can always switch over to an uncontested later if and when you come to an agreement. I hope that things work out for you and wish you the best.
Legal disclaimer: The response given is not intended to create, nor does it create an ongoing duty to respond to questions. The response does not form an attorney-client relationship, nor is it intended to be anything other than the educated opinion of the author. It should not be relied upon as legal advice. The response given is based upon the limited facts provided by the person asking the question. To the extent additional or different facts exist, the response might possibly change. Attorney is licensed to practice law only in the State of Massachusetts. Responses are based solely on Massachusetts law unless stated otherwise.