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Massachusetts Divorce Laws
Residency and Filing Requirements:In order to file for a divorce in Massachusetts, residency requirements must be met for the court to accept the case. If the court discovers it does not have jurisdictional rights to hear the case it will not be accepted or it will eventually be dismissed. The requirements are as follows:
One of the spouses must be a resident of the state of Massachusetts if the grounds for divorce occurred in Massachusetts. If the grounds for divorce occurred outside the state of Massachusetts then one spouse must be a resident of the state for at least 1 year.
Actions for divorce shall be filed, heard and determined in the probate court, held for the county where one of the parties lives, except that if either party still resides in the county where the parties last lived together, the action shall be heard and determined in a court for that county. In the event of hardship or inconvenience to either party, the court having jurisdiction may transfer such action for hearing to a court in a county in which such party resides. (Massachusetts General Laws - Chapter 208 - Sections: 4,5 & 6)
Grounds for Filing:The Complaint for Divorce or Petition for Divorce must declare the appropriate Massachusetts grounds upon which the divorce is being sought. The appropriate lawful ground will be that which the parties agree upon and can substantiate, or that which the filing spouse desires to prove to the court. The divorce grounds are as follows:
A divorce from the bond of matrimony may be adjudged for the following:
Irretrievable breakdown of the marriage as provided in sections one A and B; provided, however, that a divorce shall be adjudged although both parties have cause, and no defense upon recrimination shall be entertained by the court.
(A) A. An action for divorce on the ground of an irretrievable breakdown of the marriage may be commenced with the filing of: (a) a petition signed by both joint petitioners or their attorneys; (b) a sworn affidavit that is either jointly or separately executed by the petitioners that an irretrievable breakdown of the marriage exists; and (c) a notarized separation agreement executed by the parties except as hereinafter set forth and no summons or answer shall be required.
(B) B. An action for divorce on the ground of an irretrievable breakdown of the marriage may be commenced by the filing of the complaint unaccompanied by the signed statement and dissolution agreement of the parties required in section one A.
Adultery, impotency, utter desertion continued for one year next prior to the filing of the complaint, gross and confirmed habits of intoxication caused by voluntary and excessive use of intoxicating liquor, opium, or other drugs, cruel and abusive treatment, or, if a spouse being of sufficient ability, grossly or wantonly and cruelly refuses or neglects to provide suitable support and maintenance for the other spouse. (Massachusetts General Laws - Chapter 208 - Sections: 1, 1A, 1B and 2)
Filing Spouse Title:Petitioner (no-fault) or Plaintiff. The Petitioner or Plaintiff is the spouse who initiates the filing procedure with the family law or domestic relations court. The filing spouse can also be titled the Co-Petitioner if the parties divorce with a separation agreement.
Non-Filing Spouse Title:Respondent (no-fault) or Defendant. The Respondent or Defendant is the spouse who does not file the initial divorce papers, but rather receives them by service. The non-filing spouse can also be titled the Co-Petitioner if the parties divorce with a separation agreement.
Court Name:Commonwealth of Massachusetts, The Trial Court, The Probate and Family Court Department, __________ Division. This is the Massachusetts court where the divorce will be filed. The court will assign a case number and have jurisdictional rights to facilitate and grant the orders concerning, but not limited to: property and debt division, support, custody, and visitation. The name of the court is clearly represented at the top of all documents that are filed.
Primary Documents:Complaint for Divorce or Petition for Divorce and Judgment of Divorce. These are the essential documents needed to start and finalize a divorce according to Massachusetts law. There are anywhere from ten to twenty other documents that may be required throughout the filing process. A few other documents that are typically filed during the process are: Joint Affidavit Under M.G.L.Ch 208, Sec. 1A, Marital Settlement Agreement, Financial Statement, Order for Support, Health Insurance, and Income Assignment, and Request for Trial - Pre-Trial Assignment.
Court Clerk's Title:Office of the Clerk of the Probate Court. The clerk or the clerk's assistants will be the people managing your paperwork with the court. The clerk's office will keep the parties and the lawyers informed throughout the process in regards to additional paperwork that is needed, further requirements, and hearing dates and times.
Property Distribution:Since Massachusetts is an "equitable distribution" state, the marital property shall be divided in an equitable fashion. Equitable does not mean equal, but rather what is fair. The court will encourage the parties to reach a settlement on property and debt issues otherwise the court will declare the property award.
In determining the appropriate property distribution award, the courts shall consider the following: 1. length of the marriage; 2. the conduct of the parties during the marriage; 3. the age; 4. health; 5. station; 6. occupation; 7. amount and sources of income; 8. vocational skills; 9. employability; 10. estate; 11. liabilities and needs of each of the parties; 12. the opportunity of each for future acquisition of capital assets and income. (Massachusetts General Laws - Chapter 208 - Sections: 1A and 34)
Restoration or Name Change:The court granting a divorce may allow a woman to resume her maiden name or that of a former husband. (Massachusetts General Laws - Chapter 208 - Sections: 23)
Spousal Support:Not all cases involve support from one spouse to the other. The obligation of one spouse to support the other financially for a temporary or permanent basis is decided on a case-by-case basis as agreed to by the parties or at the court's discretion.
In determining the amount of alimony, the court shall consider 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 and the opportunity of each for future acquisition of capital assets and income.
The court may also consider 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. When the court makes an order for alimony on behalf of a spouse, said court shall determine whether the obligor under such order has health insurance or other health coverage available to him through an employer or organization or has health insurance or other health coverage available to him at reasonable cost that may be extended to cover the spouse for whom support is ordered. When said court has determined that the obligor has such insurance or coverage available to him, said court shall include in the support order a requirement that the obligor do one of the following: exercise the option of additional coverage in favor of the spouse, obtain coverage for the spouse, or reimburse the spouse for the cost of health insurance. In no event shall the order for alimony be reduced as a result of the obligor's cost for health insurance coverage for the spouse. (Massachusetts General Laws - Chapter 208 - Sections: 1A and 34)
Child Custody:When minor children are involved in a divorce, the Massachusetts courts will do everything possible to help lessen the emotional trauma the children may be experiencing. If the parents cannot come to an agreement regarding the issues involving the children, the court will establish the custody order at its discretion.
In determining what custody arrangement would be in the best interest of the child, the court shall consider all relevant facts including, but not limited to, whether any member of the family abuses alcohol or other drugs or has deserted the child and whether the parties have a history of being able and willing to cooperate in matters concerning the child.
If the issue of custody is contested and either party seeks shared legal or physical custody, the parties, jointly or individually, shall submit to the court at the trial a shared custody implementation plan setting forth the details of shared custody including, but not limited to, the child's education; the child's health care; procedures for resolving disputes between the parties with respect to child-raising decisions and duties; and the periods of time during which each party will have the child reside or visit with him, including holidays and vacations, or the procedure by which such periods of time shall be determined.
The court shall consider the shared custody implementation plans submitted by the parties. The court may issue a shared legal and physical custody order and, in conjunction therewith, may accept the shared custody implementation plan submitted by either party or by the parties jointly or may issue a plan modifying the plan or plans submitted by the parties. The court may also reject the plan and issue a sole legal and physical custody award to either parent. A shared custody implementation plan issued or accepted by the court shall become part of the judgment in the action, together with any other appropriate custody orders and orders regarding the responsibility of the parties for the support of the child. (Massachusetts General Laws - Chapter 208 - Sections: 28 and 31)
Child Support:Massachusetts child support guidelines uses the Percentage of Income formula which calculates the support obligation as a percentage of the income of the non-custodial parent who is obligated to support the child. This method simply applies a percentage to the income of the parent according to the number of children requiring support.
In determining the amount of the child support obligation or in approving the agreement of the parties, the court shall apply the child support guidelines promulgated by the chief justice for administration and management, and there shall be a rebuttable presumption that the amount of the order which would result from the application of the guidelines is the appropriate amount of child support to be ordered. If, after taking into consideration the best interests of the child, the court determines that a party has overcome such presumption, the court shall make specific written findings indicating the amount of the order that would result from application of the guidelines; that the guidelines amount would be unjust or inappropriate under the circumstances; the specific facts of the case which justify departure from the guidelines; and that such departure is consistent with the best interests of the child.
The court may make appropriate orders of maintenance, support and education of any child who has attained age eighteen but who has not attained age twenty-one and who is domiciled in the home of a parent, and is principally dependent upon said parent for maintenance.
The court may make appropriate orders of maintenance, support and education for any child who has attained age twenty-one but who has not attained age twenty-three, if such child is domiciled in the home of a parent, and is principally dependent upon said parent for maintenance due to the enrollment of such child in an educational program, excluding educational costs beyond an undergraduate degree.
The court will may deviate from the support obligation based on the support worksheet by address the following issues: alimony payments, tax exemptions for the children, minimum and maximum levels of payment, custody and visitation order, child care, age of the children, health insurance obligations, attribution of income, prior orders of support, and expenses of subsequent families. (Massachusetts General Laws - Chapter 208 - Sections: 28)
Copyright Notice: The above synopsis of Massachusetts divorce laws is original material which is owned and copyrighted by Divorce Source, Inc. This material has been adapted from applicable state laws and unauthorized reproduction is prohibited. Violation of this notice will result in immediate legal action.
Courts in Massachusetts decide child custody based on what is in the child's best interests. While parents can come to their own custody agreements, courts are not bound to accept it.
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