Frequently Asked Questions Massachusetts Divorce Law

  1. How long do I have to live in Massachusetts prior to filing for divorce in Massachusetts?
  2. If a marriage license is not filed with the State, is the marriage legal?
  3. What are the terms used to identify the parties in a divorce proceeding?
  4. What are "fault divorce" and "no-fault divorce"?
  5. How much child support should I get?
  6. What is "venue," and what is the proper venue for a divorce case or which court do I file a Massachusetts divorce?
  7. Can I get Alimony?
  8. How do I pay my bills while the divorce is pending in court?
  9. Can men receive alimony?
  10. What is spousal support?
  11. How will a Court determine how much alimony to award to a party?
  12. How do you start a divorce?
  13. What is meant by "grounds for divorce"?
  14. What will the Court do when I prove that my spouse cheated on me?
  15. What is the difference between merging the separation agreement into the decree nisi or having it separate from the decree?
  16. My spouse and I signed a separation agreement do I still need a divorce?
  17. What is joint custody?
  18. My spouse and I don't agree on child custody and visitation issues. How will the court decide these issues?
  19. My child wants to live with my spouse. Will the court decide custody based on my child's wishes?
  20. My spouse and I separated and the children are with my spouse. Can I see the children?
  21. I have custody of my children and I want to move to another state. Can I just take the children and move?
  22. I'm getting divorced, can I introduce my dates to my children?
  23. How can I make my divorce less stressful for my children?
  24. Is a simplified divorce procedure allowed in Massachusetts?
  25. What is an uncontested divorce?
  26. Does an uncontested divorce require a court hearing?
  27. I'm separated from my spouse, can I date?
  28. I was just served with a divorce complaint. Can I oppose the divorce?
  29. How is property divided in a divorce?
  30. What happens to debt and other liabilities in a divorce?
  31. What happens to retirement funds in a divorce?
  32. I inherited property from my parents. What happens to this property in a divorce?
  33. My spouse wants a divorce and has given me papers to sign. What happens if I don't sign the papers?
  34. Can I get a divorce if my spouse doesn't want it?
  35. What are temporary orders?
  36. How long will it take for my divorce to become final?
  37. My divorce should be final by now. Why hasn't the court sent me a final divorce decree?
  38. We were just married and I realize this was a mistake. Can I get the marriage annulled?
  39. After divorce, will I be entitled to some portion of my husband's pension?
  40. What is a legal separation?
  41. I don't like the provisions in my divorce decree. Can I change them?
  42. Do I need to hire an attorney?
  43. Who pays my legal fees?
  44. What happens when a custody or visitation order is violated?
  45. Can I suspend visitation because I'm not getting child support?
  46. Does custody and visitation affect the amount of child support?
  47. I currently cover my ex-spouse on my health insurance policy. I'm getting remarried, can I still cover my ex-spouse?
  48. What effect does remarriage have on child support?
  49. Can one attorney represent both me and my spouse?
  50. How do I stop my spouse from transferring assets?
  51. What is the automatic financial restraining order?
  52. I don't want to pay child support any more. Can I relinquish my parental rights?
  53. Can I have an attorney represent me for one day in court?
  54. Can I hire an attorney to draft documents for me?
  55. What is the Limited Appearance Rule?
  56. What is Mandatory Discovery?
  57. Do I have to fill out a financial statement?
  58. Do I have to take a parenting course?
  59. My spouse and I signed a prenuptial agreement. Is it valid?
  60. My ex-spouse filed for bankruptcy, what do I do?
  61. I have been separated from my spouse for years. Will the property be valued as of the date of separation?
  62. My spouse and I have been having difficulties. Can we sign a postnuptial agreement to try to save the marriage?
  63. How are family pets typically handled during a Separation/divorce?
  64. What is a contempt?
  65. How do I enforce my court orders?
  66. I have been served with a contempt, what do I do?
  67. Can I get a Civil Union or Domestic Partnership dissolved in Massachusetts?
  68. I entered into a Civil Union in another state, can I marry someone else in Massachusetts?
  69. What is a Parent coordinator?
  70. Does Massachusetts recognize common law marriage?
  71. What is rehabilitative alimony?
  72. What is reimbursement alimony?
  73. What is transitional alimony?
  74. Do I need a reason to get divorced?
  75. Must spouses live apart when a divorce complaint is filed?
  76. Am I required to show my ex itemized receipts on how I spend child support funds?

1. 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.

2. If a marriage license is not filed with the State, is the marriage legal?

The marriage is valid. Under G.L. c. 207, § 42 if you entered the marriage in good faith thinking that it was valid and the officiant represented that he had the authority to marry you, then the marriage is valid. Your subsequent separation does not effect the validity of the marriage.

3. 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.

4. 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.

5. 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.mass.gov/courts/childsupport/index.html.  The court may deviate from the guidelines if the application of the guidelines would be unjust or inappropriate under the circumstances.

6. 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.

7. Can I get Alimony?

Alimony is determined by G.L c. 208, §§ 34 and 48-55 which lists the factors a judge must consider in awarding alimony and when alimony can be given. General alimony may be awarded if there is a need and there is no child support being paid. If child support is being paid, the parties must have a combined income in excess of $250,000.00 before alimony can be granted. General alimony is granted for a period of time determined by the length of the marriage. In addition to general alimony there are three other types of alimony: rehabilitative alimony, reimbursement alimony and transitional alimony.

If the parties agree, 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 payer and included as income for taxes to the recipient, it may be advantageous to treat child support as alimony.

8. 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.

9. 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.

10. What is spousal support?

Spousal support is another term for alimony.

11. How will a Court determine how much alimony to award to a party?

If a person establishes the need for alimony, the Court should award alimony in an amount to meet the need but not more than 30 to 35 per cent of the difference between the parties' gross incomes established at the time of the order being issued. Income is defined as set forth in the Massachusetts child support guidelines but excluding (1) capital gains income and dividend and interest income which derive from assets equitably divided between the parties in the divorce and gross income which the court has already considered for setting a child support order ($250,000.00).

A judge can deviate from this formula if the judge makes written findings of sufficient reasons to warrant deviation. The list of reasons can be found in Mass. G.L. c. 208, § 53.

12. 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.

13. What is meant by "grounds for divorce"?

"Grounds" for divorce is the "reason" for divorce. The State will only alllow 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:

  1. Adultery;
  2. Impotency;
  3. Desertion for at least one year;
  4. Addiction to drugs/alcohol;
  5. Cruel and abusive treatment;
  6. Refusal to support spouse when able; and
  7. Confinement in penal institution for 5 or more years;

14. What will the Court do when I prove that my spouse cheated on me?

Surprisingly, the Court usually does very little when adultery is proved. Massachusetts is a no-fault divorce state and while the Court will consider wrongful conduct, it usually doesn't make much difference in a divorce. This is because the bad conduct is part of the factor "conduct of the parties during the marriage." It is hard to imagine a marriage where the only conduct by one party was bad conduct. Usually every person has good conduct and bad conduct during a marriage. The Judge must consider both good and bad conduct. As a result, it is rare that a person has behaved so badly during a marriage that it has a significant affect on the outcome.

15. What is the difference between merging the separation agreement into the decree nisi or having it separate from the decree?

If a judgment merges into the divorce decree, that means that it is swallowed up by the divorce decree and can be modified if there are changed circumstances. If the agreement does not merge, then it is part of the divorce decree and also an independent contract that can be enforced separately. In common language, if not merged then the terms of the divorce can't be changed in the future.

16. 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.

17. 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.

18. 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.

19. 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.

20. 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.

21. I have custody of my children and I want to move to another state. Can I just take the children and move?

Once a divorce has been started in Massachusetts, the children may not be removed from Massachusetts without permission of the other parent or a judge. When ruling on a request to remove children, the court will apply the "significant advantage test." Under this standard, the court will examine how the move will affect the children including if the move will result in reduced contact with the non-custodial parent.

22. 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.

23. How can I make my divorce less stressful for my children?

Divorce is one of the most stressful events in a person's life. The stress level is comparable to the death of a spouse. It is just as stressful for children of a divorcing couple. Children don't always understand divorce and its causes. They interpret the events through a filter of a lack of understanding. Even if the causes of the divorce are explained to children, they may blame themselves for their parents separation. Here are some suggestions on how to help children through this difficult time:

  1. Therapy—Find a therapist that is experienced with children of divorcing parents. Children can benefit from having a person they can talk with and not worry about using the information against a parent. A professional may help a child understand the events and address any guilt the child may have.
  2. Avoid Divorce Discussions—A divorce can be all consuming to parents. It is natural to want to discuss this with friends and relatives. However, children seem to hear all conversations and telephone calls that occur in the house when they are present. Even when the children are suppose to be asleep, they seem to overhear conversations. Take the conversations out of the house or make sure that the children are out of the house. If you are holding discussions with your spouse, make a date to meet at a coffee shop. This prevents the children from hearing and the public meeting place may cause the spouse to put on "public manners." When I call clients to discuss divorce issues, I frequently start by asking if it is a good time to talk.
  3. Behave calmly--Children sense when their parents suffer from stress and anger. If you can, remain calm and collected when in the presence of the children. The calmer you are, the more reassuring you are to the children.
  4. Avoid conflict—Fighting with your spouse creates stress for the children. The children won't understand the fight and won't know what to do. They may feel forced to choose between the two parents. Try to be polite when talking to your spouse. Keep your fights to appropriate arenas like email, therapists, and court.
  5. Talk to your children—Tell them that they are not responsible for the divorce. Explain that this is strictly between the adults and the reasons are adult issues that you won't discuss with the children. Explain to them how the custody and visitation will work. Reaffirm that they won't be losing either parent. However, not all issues should be discussed with the children. Avoid talking to the children about the financial issues in the divorce.
  6. Seek consistency and stability—Children thrive when they know what to expect and what is expected of them. To the extent possible, try to avoid disrupting children's lives. Work out a shared parenting agreement that takes into account the child's needs and desires while giving both parents reasonable parenting time. Be flexible to accommodate events that are important to all parties including the children.
  7. Don't put the children in the middle.-- Avoid sending messages or passing items through the children. When you pass messages or support checks through the children, the children become associated with the message. A person who resents weekly child support blames the children for the weekly financial drain. Use email and telephones for messages. Pay support obligations by mail or bank by check so that there is no face to face exchange. If the child delivers an unwelcome message, there is no ability to respond and argue. Email and telephone both allow responses.
  8. Agree on house rules—One of the first things that children learn in a separated house is how to play one parent against the other. They manipulate to change the rules of the house. Things like bedtimes and homework suddenly are more flexible. Children will try to sell their affection for bending of the rules. Don't give in to the temptation. Avoid being the fun parent as your primary focus. Make sure both parents agree on the rules of the house and don't change them without consulting the other parent.

Divorce has a major impact on children's lives. Both parents should cooperate to reduce the stress on the children. The joint goal should be to raise the children to be productive adults who can have significant relationships as an adult. Don't sacrifice the long term goal for short term rewards.

24. 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.

25. 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.

26. 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.

27. 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.

28. 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.

29. 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:

  1. the length of the marriage
  2. the conduct of the parties during the marriage
  3. the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties
  4. the opportunity of each for future acquisition of capital assets and income
  5. the contribution of each of the parties in the acquisition, preservation or appreciation in value of their respective estates
  6. 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.

30. 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.

31. 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.

32. I inherited property from my parents. What happens to this property in a divorce?

Gifts and inheritances are assets that are subject to equitable division. A judge can assign all or part of the assets to your spouse as part of the overall division of property. If there are other assets that are adequate to provide for the needs of the parties, gifts and inheritances may be treated as separate property. This is particularly likely to happen if the assets were not commingled with other assets and were not used for the benefit of the marraige.

33. 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.

34. 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.

35. 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:

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

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

36. 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.

37. 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.

38. 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.

39. 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.

40. 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.

41. 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 upon a material change in circumstances occurs.

42. 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.

43. Who pays my legal fees?

Usually, each party pays his or her own legal fees and expenses. If your financial circumstances are such that your spouse has sole control of the finances, and you have no access to funds with which you can pay legal fees, you have a right to file a motion with the Court requesting that your spouse release to you a portion of the funds with which you can pay your legal fees during the divorce proceeding. At the end of the divorce, attorney fees may be treated as a liability incurred during the marriage and allocated between the parties as part of the property division. In addition, the court can order attorney fees to be paid by a party when the court believes that a party has behaved improperly such as failing to obey a court order (contempt of court).

44. 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.

45. 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.

46. 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.

47. 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.

48. What effect does remarriage have on child support?

In most cases, remarriage has no effect on a prior child support order. However, where the new spouse has high income or assets, this could be different. Child support is based on certain concepts. One of them is that each parent has to use their income for their own living expenses and obligations. While a new spouse has no obligation to support a step child, they do have an obligation to support their spouse. Where the new spouse has enough income to support themselves and the parent, this could mean that the parent has more income available to support the child. As such, a judge could change the child support by considering this factor

49. 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.

50. 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.

51. 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.

52. 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.

53. 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.

54. 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.

55. 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.

56. What is Mandatory Discovery?

In a divorce, within forty-five days after service of the complaint and summons on the Defendant, both parties must provide to the other three years of records (tax returns, bank statements, investments statements, insurance information, etc.) These documents must be produced even if the other side doesn't request them. If you don't have these documents, you must get them. Failure to provide these records can result in court sanctions. The rule explaining this may be found at
http://www.lawlib.state.ma.us/source/mass/rules/probate/srpc410.html

This rule does not prevent parties from engaging in additional discovery.

57. Do I have to fill out a financial statement?

Every person who appears in a divorce or support proceeding that involves money or finances must fill out a financial statement. If your income is under $75,000.00 per year you should fill out the short form. If your income is $75,000.00 or greater, you should fill out the long form. If you complete the financial statement before you go to court, you may be able to get out of court faster. In addition, you are likely to be more accurate with your numbers if you complete the form in advance. Financial Statement Forms including schedules for self employment and rental income and instructions for filling out the forms may be found at
http://www.mass.gov/courts/courtsandjudges/courts/probateandfamilycourt/forms.html#financial

58. Do I have to take a parenting course?

If you have children under 18 and are getting divorced in Massachusetts, you must take a parent education class. The course is not designed to teach basic parenting skills but is designed to help you understand the challenges of having parents in two households. Information on this class including a list of providers can be found at http://www.mass.gov/courts/courtsandjudges/courts/probateandfamilycourt/parenteducation.html.

59. My spouse and I signed a prenuptial agreement. Is it valid?

Most prenuptial agreements (also called premarital agreements or prenups) will be enforced as valid in Massachusetts. If there was full financial disclosure and the agreement is free of fraud and coercion, it will probably be recognized and enforced by a Court. The agreement can't contract away rights of children but the parties can contract away the rights of adults. Generally, child custody and support can't be controlled by a prenuptial agreement. Property division and alimony can be addressed in a prenuptial agreement.

60. My ex-spouse filed for bankruptcy, what do I do?

There are two aspects to this question: property division and child support/alimony payments.

  1. Any property obligations that are not completed may be discharged in bankruptcy. This means that if property is to be transferred from your ex-spouse to you or money is to be transferred as part of the property division, then this obligation may be discharged and you may not get the property. You should consult a bankruptcy attorney immediately to determine if your rights are affected and what you can do about it.
  2. Alimony and child support are generally exempt from discharge in bankruptcy as they are considered "domestic support obligations." If they are domestic support obligations under bankruptcy law, then they will still be obligations after the bankruptcy is over. You should file a document with the bankruptcy court to establish any arrears owed for the DSO and have the bankruptcy trustee collect the money for you as this is a priority debt in bankruptcy. However, the trustee will only collect the money if the debtor's estate has assets available to pay creditors. If this is a no-asset bankruptcy, the trustee won't be able to help you.

Please note that bankruptcy court determines if the debt is a domestic support obligation or property division and the state Probate Court has no power to determine this for a bankruptcy. Therefore, you should consult a bankruptcy attorney to determine your specific rights.

61. I have been separated from my spouse for years. Will the property be valued as of the date of separation?

In Massachusetts, property is almost always valued as of the date of divorce and not the date of separation. Marriage is viewed as a partnership that can only be terminated by a Court. Therefore, the partnership continues after separation and both parties will share in any increase (or decrease) in assets from date of separation to date of divorce.

62. My spouse and I have been having difficulties. Can we sign a postnuptial agreement to try to save the marriage?

A postnuptial agreement (also called a marital agreement or postnup) which is created to try to save the marriage but sets forth terms of alimony and property division in the event of a divorce may be valid and enforceable in Massachusetts. The agreement will be carefully scrutinized by the court and will only be found valid if the court finds that it is fair and reasonable after considering, at a minimum, whether:

  1. each party had an opportunity to obtain separate legal counsel of each party's own choosing;
  2. there was fraud or coercion in obtaining the agreement;
  3. all assets were fully disclosed by both parties before the agreement was executed;
  4. each spouse knowingly and explicitly agreed in writing to waive the right to a judicial equitable division of assets and all marital rights in the event of a divorce;
  5. the terms of the agreement were fair and reasonable at the time of execution;
  6. the terms of the agreement are fair and reasonable at the time of divorce.

A postnuptial agreement may also be used for estate planning.

63. How are family pets typically handled during a Separation/divorce?

Pets are personal property and are treated as such by the courts in divorces or actions for separate support. In most cases, animals are property with no value. However, if the parties treat the pets as children, a Judge will usually treat them in the same manner. There is no formula for awarding possession of pets. Usually, a Judge should encourage the parties to work it out themselves. However, unlike children, custody of pets should not be based on a best interest standard. This means that the Judge won't make a decision of what is best for the animal. While we have animal cruelty laws which a Judge should consider, it is unlikely that either spouse would abuse the animal.
If there are children, a Judge would try to award ownership of the animals to the parent who has primary custody of the children. Usually, an argument is made that the children would be emotionally disturbed if they couldn't live with the children.
A Judge may consider other logical arguments as to awarding ownership of an animal. If the pet was a gift to one spouse or was owned by one spouse before marriage, then these factors may be the basis for deciding ownership. As pets are usually viewed as having no value, a Judge would look to some other logical basis for awarding ownership.
Unlike other property, a Judge may consider visitation rights for the parent who is not awarded the pet. Such visitation may satisfy the parties who acknowledge that both spouses care for the animal.

64. What is a contempt?

Contempt is short for "contempt of court." A contempt of court can occur when there is a violation of a court order or violation of court protocols. In the context of family law, failure to obey a court order and pay support, allow visitation, provide health insurance or other violations are contempts of court. Enforcement of the court orders after violations have occurred can be done by a "contempt action." A contempt action is a complaint that seeks to enforce the existing court orders. In Massachusetts, a person who is filing a contempt action should use the official court form. http://www.mass.gov/courts/courtsandjudges/courts/probateandfamilycourt/documents/cjd103.pdf
A contempt of court can also occur when a person violates court protocols. Examples of this could be swearing at a Judge, threatening a Judge, or even yelling at a Judge. Bad behavior that occurs in the presence of a Judge can be punished by the Judge immediately without a trial.

65. How do I enforce my court orders?

Depending on the court order there may be several different ways to enforce court orders. One of the most common remedies is by filing a contempt action to seek compliance with the court orders. In order to successfully use a contempt remedy, you must be able to prove a clear court order and a clear violation. In addition, you must be able to prove that it was possible or is possible for the Defendant to comply with the order. If the Defendant doesn't pay child support because he is in jail, then he has a good defense to a contempt action because it is impossible for him to comply. In most contempt actions, the Judge is not as concerned with punishment as with convincing the Defendant to comply with court orders going forward. Since the Judge has the power to put the Defendant in jail, most people decide to comply with court orders. When the Judge finds a person in contempt, the Judge may order attorney fees. In addition, a judgment of contempt for money bears interest at twelve percent (12%) per year.

66. I have been served with a contempt, what do I do?

Consulting a lawyer is always a wise decision. If you are accused of violating a court order, you should focus on the elements of a contempt action: clear court order, clear violation of the order, and ability to comply. Make sure that the court order as stated in the complaint for contempt is a valid, current order. If it is, do you agree that you violated the court order. If the order is not clear on what is required, then you may not have a clear order and that can be a defense to a contempt.  If you agree that you violated the order, can you comply with the order now? If you are accused of not paying money pursuant to an order, can you pay the money now? If you can't pay the full amount, can you make a partial payment? If you can't comply with the order, then you need to be able to prove to a Judge that you have not had the ability to comply and still don't have the ability to comply. Remember, your choice to spend money in other places will not create an inability to pay child support.

67. Can I get a Civil Union or Domestic Partnership dissolved in Massachusetts?

Massachusetts recognizes civil unions and domestic partnerships that were created in other states. These forms of domestic commitment are treated as marriages in Massachusetts. The dissolution procedure is the same procedure as a divorce. Just as in a divorce, at least one of the parties must meet the residency requirement for a divorce before they can file an action to dissolve a civil union or a domestic partnership.

68. I entered into a Civil Union in another state, can I marry someone else in Massachusetts?

Massachusetts treats civil unions and domestic partnerships the same as marriages. Once a person enters into a civil union or domestic partnership, they must dissolve that relationship before they can marry another person. If they enter into a wedding ceremony without dissolving the civil union, they will be committing the crime of bigamy.

69. What is a Parent coordinator?

When parents separate or get divorced, they frequently have difficulty cooperating with the other parent. The hostility between the parents can make every decision concerning children a battle. Frequently, this inability to cooperate results in litigation as the only resolution is a decision by a judge. A low cost and quicker alternative to litigation is a parent coordinator.
A parent coordinator is a third party who makes decisions concerning children when the parents can't agree. It is a form of alternative dispute resolution but it is not created by state law. In Massachusetts, it is created by an agreement of the parties. In a written agreement, typically a divorce separation agreement, the parties spell out the powers of the PC and the rules by which the PC will function. The agreement is approved by a Judge and becomes an order of the Court. The agreement allows for either party to appeal a decision from the PC to a Judge. Usually, the PC has an initial interview with the parents and then resolves issues utilizing telephone calls and emails. While the PC charges by the hour, they usually charge less than an hour for most decisions. Parent coordinators can help the parents make better decisions, save money, and eliminate stress.

70. Does Massachusetts recognize common law marriage?

Common law marriage is a valid marriage where the parties never went through a formal wedding ceremony. Generally, the requirements of a common law marriage is that the couple must cohabit and hold themselves out as married with the intent that they be lawfully married. Once a couple enters into a common law marriage, the marriage is identical to a marriage created by a solemnization ceremony. At one point, all states recognized the right to enter into a common law marriage. This was a necessity when the country was young and settlements on the frontier lacked justices of the peace or ministers who were authorized by the state to conduct weddings. In frontier days, it was not unusual for a couple to gather the community before them and announce to the community that they were married. A common misunderstanding is that a couple had to live together for seven years before their cohabitation ripened into a common law marriage.

Today, most states, including Massachusetts, have abolished the right to enter into a common law marriage. They require that couples enter a marriage through a solemnization ceremony conducted by a person authorized by the state to conduct a wedding. However, some states and Washington, D.C. still allow couples to enter into a common law marriage.

A couple married in a state that allows common law marriage are still validly married. Once married, there is no difference between a common law marriage and a solemnized marriage. This means that a couple that have a common law marriage from a state that allows such marriages can move to Massachusetts and get divorced. Massachusetts will give full faith and credit to the laws of all other states including law for creating valid marriages. If valid in another state, the marriage is valid in Massachusetts.

71. What is rehabilitative alimony?

Rehabilitative alimony is the periodic payment of support to a spouse or former spouse for a definite period of time based upon the expectation that the recipient will become economically self-sufficient. An example is payment of support to allow the recipient spouse to obtain an education or job training.

72. What is reimbursement alimony?

Reimbursement alimony is available for marriages of not more than 5 years to compensate a spouse or former spouse for economic or noneconomic contributions to the financial resources of the payor spouse. An example of such contribution is supporting a spouse while they get an education.

73. What is transitional alimony?

Transitional alimony is available for marriages of not more than 5 years to transition the recipient spouse to an adjusted lifestyle or location as a result of the divorce. This type of alimony can be used to bridge the gap between being married and a single life such as when a spouse moves out of state following a divorce.

74. Do I need a reason to get divorced?

No, you don't need any reason to get divorced. Massachusetts allows no-fault divorce which simply means that one party no longer wants to stay married. You don't need any additional reason.

75. Must spouses live apart when a divorce complaint is filed?

Massachusetts does not require a couple to separate before filing a divorce. If a couple can't agree on who should move out, they can file a divorce and let a judge decide who will move.

76. Am I required to show my ex itemized receipts on how I spend child support funds?

No you do not have to show any receipts to justify child support. You also don't have to explain how you spend the money. As long as you provide shelter, food, and clothes for the child you don't have to explain anything about how you spend child support.

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) 2013 Alan J. Pransky, Esq.