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Frequently Asked Questions Massachusetts Divorce Law

How long do I have to live in Massachusetts prior to filing for divorce in Massachusetts

If the cause of the divorce occurred outside of Massachusetts, the plaintiff must reside in Massachusetts for at least one year prior to the filing of the action. If the cause of the divorce occurred within Massachusetts, at least one of the parties must be a Massachusetts resident.

What are the terms used to identify the parties in a divorce proceeding

The person who files a contested divorce is known as the Plaintiff. The other party to the divorce is called the Defendant. If a joint complaint is filed for a no fault divorce, both parties are referred to as Co-Petitioners.

What are "fault divorce" and "no-fault divorce"

In a no-fault divorce, the parties have to prove that the marriage has broken down irretrievably or that the couple has irreconcilable differences. In other words, if one person wants a divorce, the couple will be divorced. In a fault divorce, the Plaintiff must prove that the Defendant has committed a wrong that allows the Plaintiff to get a divorce. People think that a fault grounds divorce gives the Plaintiff an advantage in getting property division or alimony. This is not the case as the Court must consider the same factors to decide these issues in both fault and no-fault divorces.

How much child support should I get

Massachusetts has enacted child support guidelines that are presumed to be the correct amount of child support due. These guidelines are available at the State website. A worksheet to calculate the amount can be found at http://www.dor.state.ma.us/apps/worksheets/cse/guidelines-short.asp. The court may deviate from the guidelines if the application of the guidelines would be unjust or inappropriate under the circumstances.

What is "venue," and what is the proper venue for a divorce case or which court do I file a Massachusetts divorce

"Venue" refers to the proper local court to file a divorce case. In Massachusetts, divorces are filed in the Probate and Family Court. The proper venue for a divorce action is the county of the parties' last residence as husband and wife. If neither spouse still lives in the county of the last marital domicile, the divorce may be filed in the county where either party resides.

Can I get Alimony

Alimony is determined by G.L c. 208, 34 which lists the factors a judge must consider in awarding alimony. There are approximately fourteen mandatory factors and four optional factors. Alimony is not appropriate in every case. Alimony may be appropriate in the following examples:

  • One spouse can't support themselves due to health or handicap issues.
  • The marriage was not short term and there is a significant difference in income between the spouses.
  • One spouse has excess income over their needs and the difference in net income between the spouses is very large.
  • Other cases not described here.

Alimony may also be appropriate as a way to reduce taxes when child support is awarded. Since alimony is deducted from income for taxes to the payor and included as income for taxes to the recipient, it may be advantageous to treat child support as alimony.

How do I pay my bills while the divorce is pending in court

The court may order that one spouse support the other while the divorce is pending in court. This support is called temporary alimony.

Can men receive alimony

Massachusetts divorce law is gender neutral. We have an Equal Rights Amendment that mandates that the courts treat people equally without bias based on gender. This means that in the correct circumstances, men can receive alimony. Generally, alimony is paid from the family bread winner to the spouse that was not the bread winner during the marriage. This means that if the wife was the major income earner during the marriage, she could pay the husband alimony. However, there are many factors that determine if alimony is appropriate in any particular case. Alimony is not automatically given in divorces.

What is spousal support

Spousal support is another term for alimony.

What factors will the court consider when determining how much alimony to award to a party

Alimony is based on consideration of the following factors:

  • the length of the marriage
  • the conduct of the parties during the marriage
  • the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties
  • the opportunity of each for future acquisition of capital assets and income
  • the contribution of each of the parties in the acquisition, preservation or appreciation in value of their respective estates
  • the contribution of each of the parties as a homemaker to the family unit.
How do you start a divorce

If the divorce is uncontested, the two parties file a joint petition for divorce with a separation agreement and an affidavit of irretrievable breakdown of marriage. The separation agreement must address all aspects of the divorce. If the divorce is contested, a divorce is started by filing a complaint for divorce and serving a summons and a copy of the complaint on your spouse. The summons will be provided by the court when you file the divorce. There is a filing fee for both types of divorce that can be waived if the filing party is indigent.

What is meant by "grounds for divorce"

"Grounds" for divorce is the "reason" for divorce. The State will only allow a divorce for a recognized reason as set forth by statute. The most common reason for divorce is "Irretrievable breakdown of the marriage." Irretrievable breakdown is also called "no-fault divorce." This means that you can get divorced if you no longer love your spouse. In addition, Massachusetts has fault grounds for divorce including:

  • Adultery;
  • Impotency;
  • Desertion for at least one year;
  • Addiction to drugs/alcohol;
  • Cruel and abusive treatment;
  • Refusal to support spouse when able; and
  • Confinement in penal institution for 5 or more years;

My spouse and I signed a separation agreement do I still need a divorce

Yes. A separation agreement is not enforceable without approval by a Judge. The State is considered to be a party to the marriage and must approve the terms of a divorce. The State is represented by a Judge who must determine that the separation agreement is fair and reasonable before divorce can be final.

What is joint custody

Joint custody means shared custody. There are two concepts in custody: legal and physical. Legal custody is the power to make decisions for a child such as religion, medical, educational, and extra curricular matters. When there is joint legal custody, these decisions should be made together. Physical custody refers to the physical presence of the child. Joint physical custody means that the child's time is split between the two parents. The parent with the child will make the ordinary, day to day decisions without consulting the other parent. In divorces, joint legal custody is the usual result. Usually, one parent has more parenting time (physical custody) with a child than the other parent.

My spouse and I don't agree on child custody and visitation issues. How will the court decide these issues

Custody is decided by determining what is best for the child. The court may award custody to either parent, regardless of gender, based on the best interests of the child. Generally, custody is viewed as allocating time with each parent. The most common custody order is school nights with the "custodial parent" and the other time, including weekends, holidays, and vacations, split between the two parents. In addition, it is common for the "non-custodial parent" to take the child to dinner one evening each week.

My child wants to live with my spouse. Will the court decide custody based on my child's wishes

As a general rule, children don't decide custody. In a contested case, the Judge will decide custody. If the child is fourteen years old or older, the Judge must have the child interviewed to determine the child's wishes. However, this is not the determining factor. At some point, the child will be able to decide the issue. Usually this occurs when the child is 16 or 17. If the child is under 14, the judge may consult the child. However, the judge should decide custody based on the best interests of the child and not the child's wishes.

My spouse and I separated and the children are with my spouse. Can I see the children

Until you get before a Judge, there is nothing that requires the custodial parent to allow visitation. While morally, every parent should always facilitate visitation, this does not always happen. Without a court order, there is nothing that compels visitation.

I'm getting divorced, can I introduce my dates to my children

As a general rule, you should avoid introducing dates and potential romantic interests to your children until the divorce is allowed by a Judge and your new relationship has the potential to be long term. Introducing children to a date has the potential to cause harm to the children. Children usually have difficulty dealing with their parents' divorce. Introducing third parties makes the transition more difficult for the children. The situation becomes more difficult if there are a series of short term dates that are introduced. While a parent has the right to maintain a social life, there is usually no need to involve the children. If the children are introduced to a date, the children will almost certainly relate this to your spouse. This is likely to cause an adverse reaction from the spouse that may make the divorce more difficult and expensive.

Is a simplified divorce procedure allowed in Massachusetts

Yes. If the parties agree on all issue, a simplified divorce procedure is available. An action for divorce based upon an irretrievable breakdown of the marriage may be commenced by filing a joint petition for divorce. The joint petition must be accompanied by a sworn affidavit alleging that the marriage has suffered an irretrievable breakdown along with a separation agreement. The parties can request a hearing date on the same day the papers are filed.

What is an uncontested divorce

An uncontested divorce is a divorce in which both parties have agreed on all issues and put the agreement in writing for the Judge to approve. If there is one issue that is not agreed upon, then the divorce is still contested. If the parties have agreed on all issues before the divorce action is filed, then they should file a joint petition for divorce. Otherwise, the divorce will start as a contested divorce and then change to uncontested when the parties reach an agreement.

Does an uncontested divorce require a court hearing

Yes, there is a court hearing involved in an uncontested divorce. The state is considered a party to every marriage and must participate in every divorce. The state is represented by a Judge who must find that the settlement is fair and reasonable to all parties and that children are adequately protected. In addition, the Judge must protect the State in the event that one party receives public assistance and ensure that all parties are covered by insurance. In most cases, an uncontested divorce hearing is quick and routine.

I'm separated from my spouse, can I date

Adultery is still a crime in Massachusetts although it is extremely rare to find a prosecution. Many people start to date before they separate from their spouse and never face a criminal prosecution. It may be wiser to consider the effect dating will have on your divorce. If your spouse knows about your dating, it may make a divorce more difficult and expensive. If you are discreet about other relationships, there may be no adverse effects from dating before you are divorced. If your spouse introduces evidence of your dating at a divorce trial, it is unlikely that a judge will pay much attention to your dating as long as it doesn't effect your children, income, expenses, or assets.

If you shower your dates with expensive gifts, you can expect an adverse reaction from a judge as such action is likely to be viewed as a violation of the automatic financial restraining order.

I was just served with a divorce complaint. Can I oppose the divorce

As Massachusetts allows a divorce on the grounds of irreconcilable differences, you can't oppose the divorce. All your spouse needs to prove to get a divorce is that they can't live with you or don't love you. This grounds for divorce is frequently called "no-fault divorce." A fault grounds divorce can be contested but it will almost certainly be changed to a no-fault divorce before the case is over.

How is property divided in a divorce

Massachusetts allocates property between spouses based on an equitable division of property. This means that the court will consider the following factors in allocating property:

  • the length of the marriage
  • the conduct of the parties during the marriage
  • the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties
  • the opportunity of each for future acquisition of capital assets and income
  • the contribution of each of the parties in the acquisition, preservation or appreciation in value of their respective estates
  • the contribution of each of the parties as a homemaker to the family unit.

Equitable division does not mean an equal division of property although an equal division of property is common. Equitable division means that the property will be divided fairly.

What happens to debt and other liabilities in a divorce

Debts are treated as "negative" assets and are divided as part of an equitable division of property. This means that the court will consider the same factors in allocating debts as it will use in allocating property. Any liability that is secured by an asset usually becomes the obligation of the person who receives the property. An example is that a mortgage is secured by real estate and usually becomes the obligation of the person who lives in the real estate. An auto loan usually becomes the obligation of the person who has use of the car. Credit card debt is usually not secured and is part of the general division of assets.

What happens to retirement funds in a divorce

Retirement funds are placed into two categories: acquired before the marriage or acquired during the marriage. Retirement funds that were owned at the time of divorce are generally not subject to division in a divorce. However, growth of an account owned prior to divorce is treated as acquired during the marriage. Retirement funds acquired during the marriage are subject to division as any other asset of the marriage is treated. As an example, assuming the husband has a 401k account that he owned prior to marriage. At the time of marriage, the value was $100,000.00. During the marriage, the husband contributed an additional $100,000.00. The account also increased due to the market and interest by an additional $50,000.00 for a total value of $250,000.00. Under these circumstances, $100,000.00 of the account will not be subject to division and the additional $150,000.00 is subject to division as a marital asset.

Retirement funds may require a special court order to divide the asset pursuant to a divorce. If so, the court will issue a Qualified Domestic Relations Order which is commonly called a QDRO to divide the asset. The QDRO must be prepared by the parties and the party that controls the retirement funds may need to be consulted.

My spouse wants a divorce and has given me papers to sign. What happens if I don't sign the papers

These papers probably include a separation agreement which will resolve all issues in the divorce. Signing these papers will mean that you agree with all terms. If you don't sign the papers, the divorce will be considered contested. The issues may be resolved by a judge instead of by agreement of the spouses. Before signing these papers, you should consult an attorney to understand the terms of the proposed settlement.

Can I get a divorce if my spouse doesn't want it

Yes. Cooperation between spouses will make the divorce process easier and less expensive. Without cooperation, the divorce is a contested matter that is longer and more expensive. However, your spouse can't stop you from getting a divorce.

What are temporary orders

Temporary orders are orders issued by a Court before the final judgment enters in a case. Frequently people in a divorce are unable to cooperate with each other. A judge will issue orders during the pendency of a divorce to address issues that can't wait until the final judgment. The following issues are typically addressed in temporary orders:

  • Should one party vacate the house?
  • Which parent will be primarily responsible for the custody of the children?
  • How often will the other parent visit the children?
  • What money is paid from one spouse to the other for child support or spousal support?
  • Who gets to use the individual assets like cars, furniture, etc.

Many other matters can be addressed in temporary orders as well.

How long will it take for my divorce to become final

A divorce will be final ninety days after the Judge issues a divorce decree which is called a decree nisi. After this waiting period, the Court will issue a final divorce decree called a decree absolute. The decree nisi issues when the Judge grants the divorce. If the parties have an uncontested divorce with a separation agreement, the Judge must first approve the agreement which then has an additional thirty day waiting period. In these cases, the divorce generally becomes final 120 days after the parties appear before the Judge. However, this may be delayed a few more days as the waiting periods start when the Judge signs the decree and not when the parties appear before the Judge.The waiting parties allow the parties to file an appeal (only in contested divorces), reconcile, or notify the court if they believe the other party fraudulently hid assets or income.

My divorce should be final by now. Why hasn't the court sent me a final divorce decree

The final divorce decree is called a Decree Absolute and may be purchased from the court. The divorce is final even if you don't have this document in your possession. If you want a copy of the Decree Absolute contact the court where you were divorced and purchase it. The fee is $20.00 for a certified copy plus one dollar per page for every page except the first.

We were just married and I realize this was a mistake. Can I get the marriage annulled

Annulment is a declaration that the marriage never existed. If there was an impediment to the marriage such as a party was still married to a previous spouse then the marriage never occurred. An unwise marriage is still a marriage and needs to be terminated by a divorce. Fraud, undue influence, or legal impediment are possible grounds for annulment.

After divorce, will I be entitled to some portion of my husband's pension

Pensions are not subject to division for the value owned prior to marriage but are subject to division for the value that accrued during the marriage. If the husband had a $25,000.00 pension or retirement account at time of marriage and it has increased to $100,000.00 at the time of divorce, then the $75,000.00 increase is subject to division. Pensions are generally divided by an order of the Court called a Qualified Domestic Relations Order or a QDRO.

What is a legal separation
A separation occurs when a couple voluntarily lives apart. A legal separation is a separation approved by a Judge. Such approval requires a Judge to consider support, child custody, health insurance, and use of property. Massachusetts does not have a "legal separation." Parties can obtain temporary orders during a divorce action or they can obtain a decree of separate support which most people consider a legal separation. A separation is not a divorce, so the couple remains legally married. If they want to get divorced, they must file a new action.

I don't like the provisions in my divorce decree. Can I change them

Other than issues relating to children, Post-decree modification usually does not occur unless there is a provision in the separation agreement to do so or if the other party committed fraud, used undue influence, or made a misrepresentation. A modification can occur to correct mutual mistakes. Issues relating to children including visitation and child support may be modified based when a material change in circumstances occurs.

Do I need to hire an attorney

You don't have to hire an attorney as you have the right to represent yourself. You could, however, be putting yourself at a serious disadvantage. Unless you and your spouse have no significant assets, children or unsettled issues, the divorce can become very complicated. An experienced family law attorney can be of great help during litigation.

What happens when a custody or visitation order is violated

If an order of the court is violated, a contempt action can be filed against the person who violated the order. In a contempt action, the court can fashion a remedy to correct the behavior in the future or to punish the violation. While contempt is available when any order is violated, contempts for custody or visitation orders may be treated differently. The court usually does not punish a person who fails to exercise visitation. If one parent can visit every other weekend and refuses to visit, there is little a court can do since the court can't force a parent to visit the child. If a parent takes the child in violation of an order under circumstances where it appears that the parent does not intend to return the child, it may be appropriate to go to court for an emergency order or even consider criminal charges of parental kidnaping.

Can I suspend visitation because I'm not getting child support

While some states allow a court to suspend visitation to enforce support payments, Massachusetts does not allow this.

Does custody and visitation affect the amount of child support

Yes. If physical custody is granted to one parent, then the other parent will pay child support. However, a traditional physical custody award assumes that the child spends approximately one third of the time visiting the other parent. If the time spent with parents varies from one-third visiting and two-thirds with custodial parent, then child support may vary from a strict application of the child support guidelines. The child support guidelines call for a different formula when time spent with the child approaches an even split. Furthermore, an argument can be made that failure of a non-custodial parent to exercise his or her visitation rights may result in an increase in child support obligations.

I currently cover my ex-spouse on my health insurance policy. I'm getting remarried, can I still cover my ex-spouse

An ex-spouse can be covered under your health insurance as long as neither one remarries. Upon remarriage of either party, the ex-spouse is no longer eligible for coverage. They can be covered by a rider to your policy or by an individual plan through your employer. For more information see G.L.c. 32A, 11A.

Can one attorney represent both me and my spouse

No. There is a conflict of interest between divorcing spouses even when they cooperate in getting the divorce. A lawyer cannot represent both parties in a divorce because a lawyer owes a duty to his client and can't divide this duty between two clients. While one attorney may draft an agreement that is fair to both spouses, each spouse should have their own attorney review the agreement before it is presented to a Judge for approval.

How do I stop my spouse from transferring assets

The easy is answer is to file a divorce and serve your spouse. Upon filing an action for divorce, an automatic financial restraining order issues. It is binding on the Plaintiff upon filing the divorce and binding on the Defendant upon service of process on the Plaintiff. This means that once the initial divorce papers are served on the spouse, the spouse is prohibited from transferring or hiding assets except for ordinary living expenses and to pay their attorney. If they want to use assets for another purpose, they need the written consent of the spouse or an order of a Judge.

What is the automatic financial restraining order

When the Plaintiff files the divorce and when the Defendant is served with the complaint and summons, each party is subject to an automatic financial restraining order. This order prohibits each party from transferring money except to pay usual and customary living and business expenses or to pay their attorney. It also prohibits parties from incurring debt in their spouses name, or changing life or health insurance policies. Violation of this order may be punished as a contempt of court.

I don't want to pay child support any more. Can I relinquish my parental rights

Generally, no. The courts will only terminate parental rights when there is another person adopting the child to take over the child support obligation or in extreme cases of abuse. The focus of child support is the child and not the paying parent. Termination of parental rights harms the child by reducing the parents of the child by one. This is considered harmful to a child. Certainly, a child support obligation can be burdensome to a parent. However, the parent does not have the option of eliminating child support by terminating parental rights.

Can I have an attorney represent me for one day in court

Massachusetts has adopted a limited appearance representation rule for lawyers (LAR) which is effective in most counties. Under this rule, clients can hire attorneys for limited matters such as one day in court, preparing and attending a pre-trial conference, taking depositions, or drafting documents. Only attorneys who have been trained under this rule may accept LAR clients. Attorney Alan Pransky has been trained under this rule and accepts clients on a limited appearance basis.

Can I hire an attorney to draft documents for me

This practice is called ghost writing and was prohibited under the Attorney's Code of Ethics. However, Massachusetts has adopted a limited appearance representation rule for lawyers (LAR) which allows ghost writing as long as the document reflects that it was drafted by an attorney. Under this rule, clients can hire attorneys to draft documents. Only attorneys who have been trained under this rule may accept LAR clients. Attorney Alan Pransky has been trained under this rule and accepts clients on a limited appearance basis. The limited appearance rule is not effective in all courts in Massachusetts.

What is the Limited Appearance Rule

Traditionally, once a lawyer accepted a litigation case, the lawyer did everything. The client never went to court without a lawyer and the lawyer drafted every document. Of course, attorney fees relate to the amount of work performed by the lawyer. The more work the lawyer did, the higher the fees. Massachusetts has adopted a rule which allows lawyers to represent clients for individual days, actions, or to draft individual forms. While this rule is not effective in all courts in Massachusetts, it is available in most probate courts. Only attorneys who have been trained under this rule may accept LAR clients. Attorney Alan Pransky has been trained under this rule and accepts clients on a limited appearance basis.

DISCLAIMER

This memorandum is for general informational purposes only and does not constitute legal advice or create an attorney-client relationship. The answers given above are based on Massachusetts law and practice and should not be considered as applicable to any other state. This web site should not be considered a substitute for proper, individualized advice from an attorney.

Copyright (c) 2010 Alan J. Pransky, Esq


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