Divorce on Grounds of Cruel and Abusive Treatment

Which of the following scenarios may give rise to a divorce based on the fault ground of cruel and abusive treatment:

1. A husband publicly makes false accusations that his wife is having multiple affairs with her medical patients; he once threatened to slash her.

2. A wife calls her husband vile names and berates him in front of their children; she has also blackened his eye one two occasions.

3. A husband forces himself upon his wife and has sex with her, despite knowing that he has a sexually transmitted disease.

4. A wife forces her wife to sleep alone in the attic, orders her to leave the marital home, and slaps her multiple times on multiple occasions.

The answer? All of the above!

Cruel and abusive treatment is a fault ground for divorce in Massachusetts, along with many other jurisdictions. It has been defined by the Massachusetts courts to mean “that it must ‘appear to be, at least, such cruelty as shall cause injury to life, limb or health, or create a danger of such injury, or a reasonable apprehension of such danger upon the parties continuing to live together. This is broad enough to include mere words, if they create a reasonable apprehension of personal violence, or tend to would the feelings to such a degree as to affect the health of the party, or create a reasonable apprehension that it may be affected.’”

As noted above, cruel and abusive treatment includes words as well as physical actions, provided that those words either create an apprehension or fear of violence, or hurt a spouse to such extent that the spouse’s health is reasonably affected. As the Supreme Judicial Court explained in one case: “acts or words are sufficient to constitute cruel and abusive treatment within the purview of R. L. c. 152, § 1, now G. L. c. 208 § 1, where the acts are committed or the words are spoken with a malevolent motive, or intention to injure, or to cause suffering to the libelant, if it is found that injury or the danger of injury to the libelant’s life, limb or health, or a reasonable apprehension thereof, is thereby caused.” In that case, the wife claimed to suffer serious mental suffering (so much so that her physical health was impacted) after she learned of her husband’s infatuation with another woman and his intentions to continue his relations with the other woman.

The defendant’s “malevolent intent” or the intent to hurt, is required to prove cruel and abusive treatment. From case law, it seems debatable whether one instance of cruelty is enough to prove cruel and abusive treatment, or whether ongoing cruelty is necessary: while some cases have granted a divorce based on this ground involving only one major incident, others have declined to do so.

If you have any questions about issues of divorce, custody, or support, you may schedule a free consultation with our office. Call 978-225-9030 during regular business hours or complete our contact form online, and we will get back to you at our earliest opportunity.
[1] Brown v. Brown, 323 Mass. 332 (1948), quoting Bailey v. Bailey, 97 Mass. 373 (1867).

[2] Curtiss v. Curtiss, 243 Mass. 51 (1922).

[3] See, for example, Collis v. Collis, 355 Mass. 25 (1968); Mooney v. Mooney, 317 Mass. 433 (1944); and Sylvester v. Sylvester, 330 Mass. 397 (1953).

Affidavits of Care and Custody in Massachusetts

What is an affidavit of care and custody, and when does a party need to file one?

The short answer to the latter part of that question: a party needs to file an affidavit of care and custody whenever there is a proceeding involving the care or custody of a child. In addition to filing with the court, the party must also provide a copy of the affidavit to all other parties involved.

The affidavit must include relevant information regarding care and custody of the child or children involved. Per Massachusetts General Laws, chapter 209b, section 3, this includes the following:

• The present address of residence of the child and each address at which the child has resided during the past two years;
• The names and addresses of any party to any custody proceedings involving the child in the past two years; and
• Information regarding whether the party has participated in any prior custody proceeding involving the child, whether in Massachusetts or in any other jurisdiction; the capacity in which the party has participated; and copies of any pleadings or determinations which were involved.

The affidavit must be written in a form which is in conformance with the relevant court rules. In addition, it must be revised if any new relevant information is discovered regarding care and custody. Unless good cause is shown and an extension is granted by the court, failure to file this affidavit may result in a party being sanctioned by the court.

What Are the Discretionary Factors in Property Assignment, and How Do They Work?

Sam and Sally are going through a divorce. For years, Sam worked outside of the home while Sally stayed home to care for the couple’s children. Sam was responsible for the acquisition of most of the couple’s property. He now wonders whether the court will consider his contributions in deciding how to divide the marital property. Conversely, Sally wonders if her contributions as a homemaker will be considered by the court.

In short, both parties’ individual contributions will be considered in this situation. The Massachusetts Probate and Family Courts use a process called equitable distribution to divide marital property in general. Here, the term “equitable” means “fair,” and not necessarily equal: the court will determine how best to divide marital property in the fairest manner in each particular case. There are many factors that the court considers as part of this process, most of them mandatory for the court’s consideration and analysis.

In addition to the mandatory factors, the court may also consider some discretionary factors:

• the contribution of each of the parties in the acquisition, preservation or appreciation in value of their respective estates, and
• the contribution of each of the parties as a homemaker to the family unit.

The fact that these factors are discretionary means, of course, that the court does not have to take them into consideration. However, these factors are still important and cannot be ignored by the court in the case of property division.

In one case, where the husband was responsible for the acquisition of most of the parties’ property, the Supreme Judicial Court held that the trial judge property considered the parties’ contributions and the sources of the marital property in dividing it. The Court noted: “an equitable, rather than an equal, division of property is the ultimate goal…To that end, a judge is required to consider the respective contributions of the parties to the marital partnership, and a disparity in contributions may be reflected in the distribution of the inherited and gifted assets. A judge may also consider, as the judge clearly did in this case, the source of the assets, each parties’ role in managing the assets, and whether the assets in question had been kept separate or commingled with the couple’s jointly owned property. In light of these considerations, and in light of her conclusion that the husband’s contributions to the marital estate greatly exceeded those of his wife, the judge’s determination to award the inherited and gifted assets to the husband, while awarding the wife the bulk of the jointly produced assets, was well within her discretion.”

If you have any questions about issues of divorce, custody, or support, you may schedule a free consultation with our office. Call 978-225-9030 during regular business hours or complete our contact form online, and we will get back to you at our earliest opportunity.

Adoption Cases: When is Parental Consent Needed, and When Might the Court Waive It?

Typically, written consent of certain parties is required before an adoption may take place; the requirements are set forth in Massachusetts General Laws, chapter 210, section 2. If the child being adopted is over the age of 12, consent by the child is needed. If the person being adopted is an adult who is married, consent of the person’s spouse is also needed.
In addition, written consent of the “lawful parents” must also be obtained before the adoption may go forward. If the child was born during a valid marriage, both biological parents must provide consent. If the child was born out of wedlock, only the consent of the mother is required; the father is entitled to notice of the adoption proceedings and may request custody, so long as he was adjudicated the father, or has filed a parental responsibility form with the Department of Children and Families.

According to the statute, the form of written consent must take the following shape:

I, as the (relationship) of (name of child), age , of the sex , born in (place of birth), on (date of birth), do hereby voluntarily and unconditionally surrender (child) to the care and custody of (agency or person receiving custody) for the purpose of adoption or such other disposition as may be made by a court of competent jurisdiction. I waive notice of any legal proceeding affecting the custody, guardianship, adoption or other disposition of (child).


Under some circumstances, however, the courts may dispense with parental consent and allow an adoption to proceed without it. As with all issues dealing with custody, the court will use the “best interest of the child” standard: the court may dispense with parental consent only where it is in the best interests of the child to do so. According to Massachusetts General Laws, chapter 210, section 3, there are many statutory factors which the court will consider in determining parental fitness. Some of them include:

• Abandonment of the child;
• Severe or repetitive conduct of a physically, emotionally or sexually abusive or neglectful nature toward the child or toward another child in the home;
• Willful failure to visit the child where the child is not within the parent’s custody;
• A prior pattern of parental neglect or misconduct or an assault constituting a felony which resulted in serious bodily injury to the child and a likelihood of future harm to the child
based on such prior pattern or assault; and many others.

In one important case, the Supreme Judicial Court considered whether the trial judge erred in holding that a mother was proven by clear and convincing evidence to be an unfit parent, dispensing with the requirement of parental consent in the adoption of her two children. “The judge made ninety-seven findings of fact, each of which is supported by the evidence. The findings establish that Mary’s long-term history of substance abuse and mental illness (the latter of which continued through trial), combined with patterns of ongoing, repeated, serious parental neglect, abuse and misconduct, made her an unfit parent,” the Court noted. “The judge was warranted in finding and concluding that, while Mary had made progress in some areas, she ‘had made no progress in ways that would assist her in getting her children back.’”

If you have any questions about issues of divorce, custody, or support, you may schedule a free consultation with our office. Call 978-225-9030 during regular business hours or complete our contact form online, and we will get back to you at our earliest opportunity.


[1] Mass. Gen. Laws, ch. 210, s. 2.

[2] Mass. Gen. Laws, ch. 210, s. 3.

[3] Adoption of Georgia, 433 Mass. 62 (2000).

[4] Id., at 66.

Desertion as Grounds for Divorce

Dean and Doreen are married, but they have not lived together since Dean left the marital home in Massachusetts about two years ago and moved out of state. While Massachusetts recognizes no fault divorce, meaning a party need only claim that there’s been an irretrievable breakdown of the marriage, some parties understandably prefer to file for fault, such as abandonment or desertion. In this case, Doreen would like to file for divorce and wonders if this approach makes sense.

In Massachusetts, by statute, desertion of a spouse is a fault ground for divorce. If you’ve essentially been abandoned by your spouse, this may be grounds for your divorce. The applicable statute reads: “A divorce from the bond of matrimony may be adjudged for…utter desertion continued for one year next prior to the filing of the complaint[.]”

The applicable statute sets out the elements as follows: “In order to establish grounds for divorce for desertion, the plaintiff shall establish that the defendant left voluntarily and without justification and with intent not to return, that at the time such defendant left, the plaintiff did not consent thereto, and that the defendant failed to cohabit with the plaintiff for at least one year next prior to the date of the filing of the action.”

Under this statute, it is important to note that the intent to abandon one’s spouse must be present in order for this type of claim to stand. Therefore, if a party leaves but intends to return to the marital home, the other spouse may not have a valid claim for desertion. Moreover, if a party deserts his or her spouse for a valid reason, such as to seek employment, to escape domestic abuse, or for purposes of a military deployment, that reason may serve as justification, and a claim for desertion may fail as a result. Further, the desertion must happen without the consent of the other spouse—mutual separation, or consent to the spouse leaving, means that no desertion has taken place.

The courts also recognize the concept of constructive desertion, where a spouse might not physically leave the marital home but withdraws from the marital relationship. In one older case, the husband was held to have constructively deserted his wife when he abandoned all matrimonial communication and relationship with her and denied her the ability to live in his home.

If you have any questions about issues of divorce, custody, or support, you may schedule a free consultation with our office. Call 978-225-9030 during regular business hours or complete our contact form online, and we will get back to you at our earliest opportunity.

Future Income and Property Acquisition in Dividing Marital Property

Zelda and Zack have been married for ten years and are undergoing a divorce. Zack recently found out two things: first, that Zelda has won a professional award which will likely allow her to increase her income substantially in the future; and second, that Zelda is likely to come into a large inheritance from her mother, of which Zack had no idea. Zack wants to know if the Massachusetts Family Law Court is likely to take these two things into consideration when dividing the marital property and ordering alimony.

The Massachusetts Probate and Family Courts use a process called equitable distribution to divide marital property in general. Here, the term “equitable” means “fair,” and not necessarily equal: the court will determine how to best divide marital property in the fairest manner in each particular case. There are many factors that the Court considers as part of this process. Massachusetts General Laws, chapter 208, section 34 defines the factors the Court will use in determining how marital property should be divided. Under the statute, the Court may include in its analysis the opportunity for the parties to acquire future income and property.

The opportunity to acquire future income and property is a comprehensive factor: it includes the likelihood of earning future salaries, bonuses, royalties, and other sources of income. It also includes family trusts, inheritances, and other property which may befall one of the parties in the future.

In one Massachusetts case, the Court considered the effect of the husband’s Nobel prize on his future acquisition of assets. As the Appeals Court explained upon appeal:

In explaining her division of assets, the judge relied “heavily” upon the statutory factor of the “ability of the parties to acquire future income and assets.” The judge concluded that the husband’s ability is excellent, as he retains a retirement asset in which his employer “matches his future contributions dollar for dollar,” and his “receipt of the Nobel prize opens wide new horizons for his income potential.” The wife’s future prospects were found to be “paltry and stagnant by comparison.” The judge found that the wife had “no likelihood of acquiring significant future assets or increasing her earned income.”

The Appeals Court affirmed, holding that the trial court properly considered the above factors in computing the parties’ opportunity to acquire future income. “The husband’s and wife’s ability to acquire future income and assets are therefore strikingly different and justify the judge’s heavy reliance on this factor,” the Court noted.

In the case of future property acquisition, however, the Court will carefully consider whether there is a realistic prospect of receiving the future income or property, or whether future acquisition is merely expected. If it’s the latter, the Court may not include it in its consideration of assets. In one case, the courts considered a husband’s future interests in many different family trusts and other property. In some trusts, the husband was deemed to have a present, enforceable right, and those trusts were ordered by the court to be considered as opportunity for future acquisition of capital assets and income in determining alimony and child support. In some other trusts, however, the husband’s interest was deemed too remote or speculative, and those trusts were not considered to be part of the marital estate.

If you have any questions about issues of divorce, custody, or support, you may schedule a free consultation with our office. Call 978-225-9030 during regular business hours or complete our contact form online, and we will get back to you at our earliest opportunity.

What’s in a (Child’s) Name? Massachusetts Law Regarding a Child’s Last Name

Typically, a child born into a valid marriage will receive the last name of the husband, who in Massachusetts is presumed to be the father of the child. There is, however, no law in place which requires the parents to give their child the father’s last name. In fact, if the parents agree to a different last name for the child, they have the right to choose that last name according to an important decision by the Massachusetts Supreme Judicial Court.

In the 1977 case of Secretary of the Commonwealth v. City Clerk of Lowell, the Court considered several cases brought against city clerks who had refused to follow the opinion of the Attorney General regarding the recording and use of names, without respect to the desires of the people who filed their children’s birth certificates. The facts of the cases varied: in one case, an unmarried woman attempted to hyphenate her child’s last name, but the clerks changed it to her name; in another case, a married couple applied for a hyphenated last name for their child, based on both of their last names, but the clerks changed it to the father’s last name; and so on.

The Court noted that a long-standing legal custom allowed adults the freedom to choose and change their names. “We think the common law principle of freedom of choice in the matter of names extends to the name chosen by a married couple for their child,” the Court reasoned. “They may change their own names at will, and need not have the same surname. It seems to us to follow that they need not give their child the father’s surname, though of course they may.” The Court declined to address issues regarding illegitimate children, but established that married parents may decide to give their children a surname other than the father’s last name.

But what happens when the parents do not agree as to what the child’s last name should be—whether at birth, or later, after a separation which causes one parent to wish to change the child’s last name? When the parties are in a dispute about the child’s last name, the Court will use the “best interests of the child” standard to determine what the child’s name should be. As always, this standard takes into consideration many different factors: in this context, the factors include the effect of a name change on the child; the length of time the child has had his or her last name; the relationship the child has to each parent, as well as to his or her siblings; and any difficulties the child may experience in the event of a name change versus keeping the child’s last name the same.

In one case, the father of a child born out of wedlock petitioned to have his daughter’s last name changed from the mother’s last name to his own. The trial judge sided with the father and ordered the child to bear the paternal last name, but the appeals court disagreed. “In the circumstances presented here, we hold that there is no presumption favoring the father’s right to have his child bear his name solely because he provides financial support and recognizes the child as his own,” the Court noted; rather, the father had the burden on proving that changing the daughter’s last name was in her best interests, which he failed to do.

In another case, the mother of two children petitioned the court to change the children’s last name from the last name of their father (her former husband) to the last name of her new husband. The trial judge declined to do so, but the appeals court again disagreed, holding that the trial court based its decision on the consideration of factors that lacked firm foundation in evidence, and ignored contrary evidence.

If you have any questions about issues of divorce, custody, or support, you may schedule a free consultation with our office. Call 978-225-9030 during regular business hours or complete our contact form online, and we will get back to you at our earliest opportunity.

I’ve Been Served with Divorce Papers…Now What?

If your spouse has filed for divorce in the Massachusetts Probate and Family Court, you have several options as to the next steps to take in the case. Consider the following options:

  • You may file an Answer to your spouse’s Complaint.

Your Answer is the official responsive pleading to your spouse’s allegations in his or her Complaint. In this document, you admit or deny each of the statements contained in the plaintiff’s Complaint.
According to the Massachusetts Rules of Domestic Relations Procedure, the defendant in his or her Answer “shall state in short and plain terms his defenses to such claim asserted and shall admit or deny the averments upon which the adverse party relies. If he is without knowledge or information sufficient to form a belief as to the truth of an averment, he shall so state and this has the effect of a denial.”
Under most circumstances, your Answer will be due 20 days from the date of service of process.
In your Answer, you may include affirmative defenses
Affirmative defenses include “accord and satisfaction, arbitration and award, assumption of risk, contributory negligence, discharge in bankruptcy, duress, estoppel, failure of consideration, fraud, illegality, injury by fellow servant, laches, license, payment, release, res judicata, statute of frauds, statute of limitations, waiver, and any other matter constituting an avoidance or affirmative defense.”

  • Under some circumstances, you may file a motion to dismiss.

Under Rule 12, this motion asks the Court to dismiss the claims against you. In a divorce claim, a motion may be filed for several reasons, including:
1. Lack of jurisdiction over the subject matter;
2. Lack of jurisdiction over the person;
3. Improper venue;
4. Insufficiency of process;
5. Insufficiency of service of process;
6. Failure to state a claim on which relief can be granted;
7. Failure to join a party under Rule 19;
8. Misnomer of a party;
9. Pendency of a prior action in a court of the Commonwealth.

For example, under the Rules, you may file a motion to dismiss if your domicile is disputed, if service of process was improper, or if there is a prior divorce claim already in effect. The documents you will need to file typically include: the motion, which asks the Court to dismiss the claim; a memorandum of law which serves as the legal support for your motion; and an affidavit where you include key facts in support of your motion, signed under oath and under the pains and penalties of perjury.
You should file any motions to dismiss prior to filing your Answer or any other responsive pleading.

  • You may file a counterclaim or a cross-complaint

A counterclaim is the defendant’s claim against the plaintiff. You may file a counterclaim in your Answer; if you designate it as a counterclaim, no entry fee should be due. Your counterclaim should allow you to bring up claims for divorce, spousal support, property division, custody, and child support, among others.

In the alternative, you may choose to omit counterclaims and instead file a cross-complaint for divorce. According to the Rules, “In a contested action for divorce if the defendant upon payment of the proper entry fee and at any time prior to the conclusion of the hearing shall cause to be entered his or her cross-complaint for divorce, the court shall allow the entry of said cross-complaint after giving of such notice or service to the new defendant as the court, in its discretion, shall order.”

If you have any questions about issues of divorce, custody, or support, you may schedule a free consultation with our office. Call 978-225-9030 during regular business hours or complete our contact form online, and we will get back to you at our earliest opportunity.

Requesting a Stay Under the Federal Servicemembers’ Civil Relief Act: Recent Case Law

When it comes to a divorce action between spouses where one or both spouses is a member of the military, certain specific procedural rules apply. In particular, the Federal Servicemembers’ Civil Relief Act provides that a person on active military duty is entitled to a continuance of any action, including a divorce or custody action, upon showing that the party is prevented from appearing in court due to military service.

In a recent case, the Massachusetts Appeals Court considered the argument of a husband who claimed his rights under the SCRA were violated when the Probate and Family Court failed to issue him a continuance on several hearing dates related to his divorce, custody, and support issues. In Fazio v. Fazio, the husband sought a stay of a hearing by faxing a letter to the court the day before the hearing was to take place. The letter, written by the husband’s commanding officer, stated that the husband’s unit would be conducting pre-deployment training which would last approximately a year, and requested that all hearings be postponed as a result. The judge, expressing frustration with the last-minute request, declined to extend a stay of the hearing. The husband appealed.

The Appeals Court agreed with the trial judge, noting that the requirements for an adequate request under the SCRA were not met. “The commanding officer’s communication provided no details about the husband’s predeployment training and did not explain how the requirements of the training mission prevented the husband from taking part of one day to attend a court hearing,” the Court noted. “Nor did the commanding officer state that the husband could not obtain leave to appear at the hearing at any time during the two months prior to mobilization.” Because the husband’s requests were inadequate, the trial judge was correct in not granting the stays.

Moreover, the Appeals Court reviewed the temporary orders which were granted by the trial court. While the Appeals Court held that the temporary child support orders deviated from the guidelines and were therefore an abuse of discretion, the Court affirmed the judge’s division of marital property, which had given approximately two-thirds of the property to the wife. “[T]he judge found that the parties contributed equally to creation of the marital estate prior to separation, but that the wife ‘played a far more significant role in the preservation of the estate’ after the separation,” the Court stated. “The judge’s subsidiary findings, which the husband does not challenge, support her rationale. Reversal of the property division is not warranted.”

If you have any questions about issues of divorce, custody, or support, you may schedule a free consultation with our office. Call 978-225-9030 during regular business hours or complete our contact form online, and we will get back to you at our earliest opportunity.

Expunging a Protective Order: New Case Law

Once a protective order is issued, under what circumstances might that order be expunged by the court? This question was recently addressed by the Massachusetts Appeals Court.

The case of J.S.H. v. J.S. involved a protective order of harassment prevention which was issued under Massachusetts General Laws, chapter 258E. The plaintiff who sought the order was president of a religious non-profit organization which ran a support group for victims of domestic violence. The defendant was the husband of one of the women who attended the group. The plaintiff claimed in her supporting affidavit that the defendant wrote to board members of her organization, seeking to discredit her, and that he also sent her multiple harassing emails. No letters or emails were included with the plaintiff’s affidavit. The trial court granted an order of protection. Upon expiration of the order, the plaintiff sought to extend it, and she submitted copies of a letter and two emails which the defendant had sent to the organization’s board. The trial court declined to extend the order.

Nearly a year later, the defendant sought to expunge all evidence of the order of protection. The defendant claimed that the plaintiff had committed fraud on the court in obtaining the original protective order, because she indicated that he had sent her emails directly. The court declined to expunge the records, and on appeal, the Appeals Court agreed.

“Chapters 209A and 258E are particularly similar in their treatment of records following the issuance of an order, as well
as after an order is vacated. Under both statues, once a judge issues an order, the order and supporting papers are transmitted to the appropriate law enforcement agency,” the Court explained. Under both statues, once an order is vacated, the court sends written notification to the appropriate law enforcement agency directing it to destroy its records of the vacated order…However, there is no explicit statutory authority regarding the expungement of records of c. 209A or c. 258E orders from any Statewide registry maintained by the commissioner.”

In order for an expungement order to be appropriate, the Court noted, the petitioner must be able to prove that the original abuse protection order was obtained through fraud on the court. Citing a previous case precedent, the Court explained that “[a] ‘fraud on the court’ occurs where it can be demonstrated, clearly and convincingly, that a party has sentiently set in motion some unconscionable scheme calculated to interfere with the judicial system’s ability impartially to adjudicate a matter by improperly influencing the trier or unfairly hampering the presentation of the opposing party’s claim or defense.”

In the case at hand, the Court said, nothing suggested that the plaintiff fabricated her story or was motivated by a deceptive scheme. Something more serious and egregious is required to find fraud on the court than stated in this case, the Court noted, affirming the decision not to expunge the records.

If you have any questions about issues of divorce, custody, or support, you may schedule a free consultation with our office. Call 978-225-9030 during regular business hours or complete our contact form online, and we will get back to you at our earliest opportunity.