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FAQs About Divorce

  1. My ex-spouse failed to change the death beneficiary on a bank account (or life insurance policy). Can I receive the money?
  2. My 18 year old child is going to be a parent. Can I terminate child support?
  3. Can I change my name before I get divorced?
  4. How do I serve a missing spouse in a divorce?
  5. Can I take a new job that pays less and reduce my child support payment?
  6. How long do I have to live in Massachusetts prior to filing for divorce in Massachusetts?
  7. If a marriage license is not filed with the state, is the marriage legal?
  8. What are the terms used to identify the parties in a divorce proceeding?
  9. What are “fault divorce” and “no-fault divorce?”
  10. How much child support should I get?
  11. What is “venue,” and what is the proper venue for a divorce case or which court do I file a Massachusetts divorce?
  12. Can I get alimony?
  13. How do I pay my bills while the divorce is pending in court?
  14. Can men receive alimony?
  15. What is spousal support?
  16. How will a court determine how much alimony to award to a party?
  17. How do you start a divorce?
  18. What is meant by “grounds for divorce?”
  19. What will the court do when I prove that my spouse cheated on me?
  20. What is the difference between merging the separation agreement into the decree nisi or having it separate from the decree?
  21. My spouse and I signed a separation agreement; do I still need a divorce?
  22. What is joint custody?
  23. My spouse and I don’t agree on child custody and visitation issues. How will the court decide these issues?
  24. My child wants to live with my spouse. Will the court decide custody based on my child’s wishes?
  25. My spouse and I separated and the children are with my spouse. Can I see the children?
  26. I have custody of my children and I want to move to another state. Can I just take the children and move?
  27. I’m getting divorced; can I introduce my dates to my children?
  28. How can I make my divorce less stressful for my children?
  29. Is a simplified divorce procedure allowed in Massachusetts?
  30. What is an uncontested divorce?
  31. Does an uncontested divorce require a court hearing?
  32. I’m separated from my spouse; can I date?
  33. I was just served with a divorce complaint. Can I oppose the divorce?
  34. How is property divided in a divorce?
  35. What happens to debt and other liabilities in a divorce?
  36. What happens to retirement funds in a divorce?
  37. I inherited property from my parents. What happens to this property in a divorce?
  38. My spouse wants a divorce and has given me papers to sign. What happens if I don’t sign the papers?
  39. Can I get a divorce if my spouse doesn’t want it?
  40. What are temporary orders?
  41. How long will it take for my divorce to become final?
  42. My divorce should be final by now. Why hasn’t the court sent me a final divorce decree?
  43. We were just married and I realize this was a mistake. Can I get the marriage annulled?
  44. After divorce, will I be entitled to some portion of my husband’s pension?
  45. What is a legal separation?
  46. I don’t like the provisions in my divorce decree. Can I change them?
  47. Do I need to hire an attorney?
  48. Who pays my legal fees?
  49. What happens when a custody or visitation order is violated?
  50. Can I suspend visitation because I’m not getting child support?
  51. Does custody and visitation affect the amount of child support?
  52. I currently cover my ex-spouse on my health insurance policy. I’m getting remarried; can I still cover my ex-spouse?
  53. What effect does remarriage have on child support?
  54. Can one attorney represent both me and my spouse?
  55. How do I stop my spouse from transferring assets?
  56. What is the automatic financial restraining order?
  57. I don’t want to pay child support any more. Can I relinquish my parental rights?
  58. Can I have an attorney represent me for one day in court?
  59. Can I hire an attorney to draft documents for me?
  60. What is the Limited Appearance Rule?
  61. What is Mandatory Discovery?
  62. Do I have to fill out a financial statement?
  63. Why are financial statements on colored paper?
  64. Do I have to take a parenting course?
  65. My spouse and I signed a prenuptial agreement. Is it valid?
  66. My ex-spouse filed for bankruptcy; what do I do?
  67. I have been separated from my spouse for years. Will the property be valued as of the date of separation?
  68. My spouse and I have been having difficulties. Can we sign a postnuptial agreement to try to save the marriage?
  69. How are family pets typically handled during a separation/divorce?
  70. What is a contempt?
  71. How do I enforce my court orders?
  72. I have been served with a contempt; what do I do?
  73. Can I get a Civil Union or Domestic Partnership dissolved in Massachusetts?
  74. I entered into a Civil Union in another state; can I marry someone else in Massachusetts?
  75. What is a Parent coordinator?
  76. Does Massachusetts recognize common law marriage?
  77. What is rehabilitative alimony?
  78. What is reimbursement alimony?
  79. What is transitional alimony?
  80. Do I need a reason to get divorced?
  81. Must spouses live apart when a divorce complaint is filed?
  82. Am I required to show my ex itemized receipts on how I spend child support funds?
  83. Can I file for divorce in Massachusetts if I am not a U.S. Citizen?
  84. If I file for bankruptcy, do I still have to pay child support and alimony?
  85. When should I contact a lawyer about a divorce?
  86. Can I file for divorce if I still live with my spouse?
  87. What is divorce mediation?
  88. Should I use mediation to settle my divorce?
  89. What is a mediation coach in a divorce?
  90. How do you terminate child support payments when the child is emancipated?
  91. Who gets to claim the children as dependents for tax returns?
  92. What is bird’s nest custody?
  93. Does anything different have to be done when divorcing a spouse in the military?
  94. What is abandonment of property in a divorce?
  95. I am scheduled to appear in person for a court hearing in Probate Court. Can I change this to a virtual hearing?
  96. What happens to the house in a divorce?
  97. What happens in Massachusetts to Life Insurance Policies and Payable on Death Clauses that are not changed after a divorce?
  98. How to File for Divorce in Massachusetts?
  99. How to dress when you go to court?
  100. Can a person receive both alimony and child support in Massachusetts?
  101. Can I Bring My Children to Court for My Divorce?
  102. Can I Continue to Get Alimony in Massachusetts if I Get Married or Cohabit?
  103. Can I Change the Terms of My Divorce Agreement after it Is Finalized?
  104. How Do Courts Determine Child Custody in Massachusetts?
  105. What can happen to a person if they don’t pay child support in violation of a court order?
  106. Will I Lose My License If I Don’t Pay Child Support?
  1. My ex-spouse failed to change the death beneficiary on a bank account (or life insurance policy). Can I receive the money?The only way a divorced person can receive death benefits from the death of an ex-spouse is if there is a document that specifically grants the surviving spouse death benefits. G. L. c. 190B, § 2-804. This is true whether it is life insurance, bank account, stock, or retirement accounts. The easiest way to protect the right to receive these survivor benefits is to include language in a separation agreement or divorce judgment. This language should specifically identify the asset and specifically state that the death benefits will go to the ex-spouse. If the language is not included in a separation agreement a separate document may be used. In particular, a will which is written after the date of divorce can confirm that the death benefits are to belong to the surviving spouse. A court would probably recognize a notarized statement that confirms the intent to grant the death benefits to the ex-spouse.If there is no written document granting the death benefits to the ex-spouse, the assets should not pass at death but should be part of the probate estate of the deceased person.
  2. My 18 year old child is going to be a parent. Can I terminate child support?In Massachusetts, child support is controlled by Massachusetts General Law c. 208, § 28. There are three factors for a court to consider when determining child support for children between 18 and 21. They are (1) Age of child (18-21),( 2) Domicile of child (must be with parent receiving child support), and (3) child must be principally dependent upon the parent for maintenance. (Need for suport). There is nothing in the law that states that child support stops if the child becomes a parent or receives welfare or child support payments. While money the child receives to support the child and their baby should be considered by a judge when deciding if there is a need for child support payments, a judge could conclude that there is still a need for child support. A judge should also consider that the child’s expenses have increased as there is now a baby that the child must provide for.The statute is somewhat different for children between the ages of 21 and 23. In that case, child support can only be ordered if the child is principally dependent upon the parent (that the child lives with) due to the enrollment of the child in an educational program. Again, the statute does not state that child support is terminated if the child has a child of their own.
  3. Can I change my name before I get divorced?Many people obtain a court order before they change their name. They can do this at the time of their final divorce hearing or in a separate petition for a name change. However, in Massachusetts, people also have the right to change their name without a court order. Just as many women change their names when they get married without a court order, people can change their name at any other time without a court order. People, male or female, have the right to choose their own name as long as there is no intent to defraud anyone by the name change. A person can change their name simply by using another name. The person must publicly and consistently start using the new name.
  4. How do I serve a missing spouse in a divorce?You can get divorced even if your spouse has disappeared and can’t be notified. However, unless you actually serve your spouse you can’t get an award of alimony or child support.If you know where your spouse lives or works you need to hire a constable or sheriff to serve your spouse. If you don’t know where they live or work you should use the internet to locate them. I have discussed this in a blog article. You will need to file a motion for alternative service in which you detail the efforts you have made to locate and serve them. If you can locate a close relative like their parents you can ask the court to serve the relative as a way of notifying the spouse.If you are paying alimony or child support through a state agency or the court you can file a motion to serve the collection agency who will then serve the spouse. This also works if your spouse’s address is impounded by the court.If there is a restraining order and you are not permitted to contact your spouse you should either hire an attorney who will be able to serve the spouse or you can file a motion for the court to serve the spouse.If all else fails, you will need to serve the spouse by publication in a newspaper. This will require a motion to the court. It is the least preferred method of service.
  5. Can I take A new job that pays less and reduce my child support payment?Massachusetts distinguishes between voluntary job changes and involuntary changes. A voluntary change is where a person chooses to change jobs or start a new business. An involuntary change occurs when a person loses their job through no fault of their own.If you voluntarily change jobs to a lower-paying position and then petition the court for a lower child support payment, you probably won’t get a reduction. Massachusetts does not allow people to manipulate child support payments. Voluntarily choosing to take a lower-paying job is viewed as a manipulation and is prohibited.
  6. 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.
  7. 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.
  8. 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.
  9. 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.
  10. 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 https://www.mass.gov/info-details/child-support-guidelines#2021-guidelines,-forms,-and-information-. The court may deviate from the guidelines if the application of the guidelines would be unjust or inappropriate under the circumstances.
  11. 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 in which 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.
  12. 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 $400,000 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. In some cases, a Judge can order alimony to be paid and the child support calculations to be based on the parties income after adjustments are made based on the alimony order.
  13. 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.
  14. 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 breadwinner to the spouse who was not the breadwinner 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.
  15. What is spousal support?Spousal support is another term for alimony.
  16. 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 percent of the difference between the parties’ gross incomes established at the time of the order being issued. Many judges now consider that due to changes in federal tax law, alimony no longer has tax consequences and have reduced the percentages to 24 to 28 percent. 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 ($400,000).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.
  17. 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.
  18. 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:
    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
    7. Confinement in penal institution for five or more years
  19. 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.
  20. 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.
  21. 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.
  22. 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 extracurricular 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.
  23. 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 “noncustodial parent” to take the child to dinner one evening each week.
  24. 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 14 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.
  25. 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.
  26. 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.
  27. 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.
  28. 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 who 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 supposed 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 telephones 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.

  29. Is a simplified divorce procedure allowed in Massachusetts?Yes. If the parties agree on all issues, 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.
  30. 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.
  31. 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.
  32. I’m separated from my spouse, can I date?Adultery is no longer a crime in Massachusetts. Many people start to date before they separate from their spouse and never face a criminal prosecution. It may be wise 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 affect your children, income, expenses, or assets.You should not introduce your children to a date. Judges frequently consider interactions between your children and a romantic interest during a divorce to be emotionally harmful to the children. Judges usually issue orders preventing such actions when they have the opportunity to do so. 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.
  33. 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.
  34. 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.

  35. 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.
  36. 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, assume the husband has a 401(k) account that he owned prior to marriage. At the time of marriage, the value was $100,000. During the marriage, the husband contributed an additional $100,000. The account also increased due to the market and interest by an additional $50,000 for a total value of $250,000. Under these circumstances, $100,000 of the account will not be subject to division and the additional $150,000 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 assets. The QDRO must be prepared by the parties and the party who controls the retirement funds may need to be consulted.
  37. 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 marriage.
  38. 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.
  39. 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.
  40. 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.

  41. How long will it take for my divorce to become final?A divorce will be final 90 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 30-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 period allows 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.
  42. 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 for a certified copy plus $1 per page for every page except the first.
  43. 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 impediments are possible grounds for annulment.
  44. After divorce, will I be entitled to some portion of my husband’s pension?Pensions are subject to division in a divorce. Depending on various factors, the Judge may not divide the pension, may divide if for the period of the marriage coverture, or may divide the pension in its entirety. You should know the value of the pension at the time of the marriage so that the judge can make an informed decision. Pensions are generally divided by an order of the Court called a Qualified Domestic Relations Order, or QDRO.
  45. 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.
  46. 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 occurring.
  47. 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.
  48. 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).
  49. 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 kidnapping.
  50. 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.
  51. 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 noncustodial parent to exercise his or her visitation rights may result in an increase in child support obligations.
  52. 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.
  53. 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 stepchild, 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
  54. 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.
  55. How do I stop my spouse from transferring assets?The easy 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.
  56. 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 spouse’s name, or changing life or health insurance policies. Violation of this order may be punished as a contempt of court.
  57. 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.
  58. 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 pretrial 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.
  59. 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.
  60. 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.
  61. What is Mandatory Discovery?In a divorce, within 45 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.htmlThis rule does not prevent parties from engaging in additional discovery.
  62. 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 per year you should fill out the short form. If your income is $75,000 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/selfhelp/family/financial-statements.html
  63. Why are financial statements on colored paper?Massachusetts requires that all financial statements and child support guidelines worksheets be prepared on colored paper. Long form financial statements (for incomes over $75,000) are prepared on purple paper. Short form financial statements (for incomes under $75,000) are prepared on pink paper. Child support guidelines are prepared on blue or yellow paper. The reason for the colored paper is that financial statements and child support guidelines contain information that should not be available to the general public. Financial statements have enough information to easily allow a person to steal an identity it from the form. Financial statements are automatically impounded by the court. They are kept in a separate file which is not available to the general public. Parties and their attorneys can access the file but must file a motion for permission to look at the file. Colored paper allows the clerk’s office to easily find the financial statements and remove them from the public access file. If the financial statements were on white paper the clerks would have to look through the entire file. If a party files a financial statement on white paper it will be accepted by the court, but is likely to remain in the public access file and be available to anybody who looks at the file.
  64. Do I have to take a parenting course?Prior to July 12, 2021 parents of minor children who got divorced were required to take a state approved parenting class. Massachusetts suspended this requirement for any divorce filed on July 12, 2021 or later. It is expected that the requirement will be reinstated at some date in the future.
  65. 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.
  66. 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.

  67. 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.
  68. 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) 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.

  69. 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 pet(s).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 spouse who is not awarded the pet. Such visitation may satisfy the parties who acknowledge that both spouses care for the animal.
  70. 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/forms/contempt-forms-gen.htmlA 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.
  71. 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 12 percent per year.
  72. 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.
  73. 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.
  74. 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.
  75. 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 (PC).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.
  76. 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 are 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 is still validly married. Once married, there is no difference between a common law marriage and a solemnized marriage. This means that a couple who has 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.
  77. 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.
  78. 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.
  79. 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.
  80. 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.
  81. 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.
  82. 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.
  83. Can I file for divorce in Massachusetts if I am not a U.S. citizen?In order to get divorced in Massachusetts, at least one person in the marriage must meet the residency requirement of one year, or the “cause of action” for the divorce must have occurred in the state. Massachusetts does not ask about citizenship or legal residency and the courts do not communicate with Homeland Security about legal residency of people in court. Massachusetts will treat this divorce the same as any other divorce.
  84. If I file for bankruptcy, do I still have to pay child support and alimony?Alimony and child support are called “domestic support obligations” and are not discharged by bankruptcy. The obligations to pay alimony and child support continue as if the bankruptcy had not been filed. If you stop making these payments, you are violating an order of Family Court and are subject to collection actions and sanctions from that court. Bankruptcy Court will also enforce these obligations as this is a priority debt.
  85. When should I contact a lawyer about a divorce?The simple answer is you should consult an attorney as soon as you or your spouse start thinking that you may get divorced. Consulting an attorney is not the same thing as hiring an attorney. Many attorneys provide a free initial consultation. In this consultation, the lawyer should explain divorce procedure and how courts approach custody, money, and other issues. As a result of this consultation you may decide that you don’t want a divorce or you may decide to start planning for a divorce. Perhaps you will decide to increase your efforts to make your relationship work. On the other hand, you may decide that divorce is inevitable and you should start protecting yourself. Divorce, like marriage, is a life-altering action. You should understand the consequences before you make a decision.
  86. Can I file for divorce if I still live with my spouse?Massachusetts does not require parties to separate before filing for divorce. This means that you can still live with your spouse and file for divorce. A spouse without resources is not prohibited from filing for divorce because they can’t afford to move out and their spouse won’t agree to move out. A person can file for divorce and file a motion to request that a Judge order the spouse to vacate the marital home.While filing for divorce while living together can create additional problems and tensions, it may be the only way a person without money can start a divorce.
  87. What is divorce mediation?Divorce mediation is a voluntary, non adversarial process in which divorcing spouses meet with a neutral third party to try to reach an acceptable divorce agreement. The mediator guides the spouses to gather information and communicate but doesn’t make any decisions for them. Mediation is nonbinding until its conclusion, at which time a contract reflecting an agreement will be signed and presented to a Judge for approval. Mediation is an alternative to the formal process of litigating a divorce in court.
  88. Should I use mediation to settle my divorce?Mediation can lower the costs of a divorce and result in better terms for the divorce. However, mediation works best when both parties are acting in good faith and want to reach an agreement. Both parties must be truthful in their financial presentation and trust that their spouse is being truthful. If one spouse is hiding assets or income or does not act in good faith, then mediation is probably not in the best interests of the parties.
  89. What is a mediation coach in a divorce?A mediation coach is an attorney who advises a client who is engaged in mediation. Many people choose mediation as a method to settle the issues in a divorce. All negotiations in a divorce occur in the framework of divorce laws. A person who is engaged in mediation should have an advisor who can give private, confidential advise about the laws that apply to custody, support, property division and other issues. In addition, a lawyer can give advise about negotiating tactics and positions. A mediation coach can guide a person to reach a better result in mediation without undermining the mediation process.
  90. How do you terminate child support payments when the child is emancipated?Emancipation of a child is different for every case. So the first step to determine if you can terminate child support is that you must understand the definition of “emancipation” as it applies to you. If you have a separation agreement the definition of emancipation is probably contained in the separation agreement. If you don’t have an agreement or it isn’t part of the agreement, then emancipation will be controlled by Massachusetts General Laws chapter 208, section 21.If payments are being made directly to the other parent and there is a separation agreement, then there is already a court order that states the payments shall stop. All that is required is that payments actually stop. However, if you are mistaken about emancipation you could face a contempt action.If payments are being made through the Department of Revenue (DOR) then you need to get DOR to stop collecting the money. You may be able to do this by contacting DOR and providing them with information supported by documents that confirm child support should stop. This process is called an administrative review. After you submit documents, DOR will ask the other parent for their view of emancipation and to submit documents to support their view. Then DOR will make a decision. If you disagree with DOR, then you can file a judicial review in court.Another option is to go directly to Probate Court and file a motion to terminate child support. Some judges will hear a motion to terminate and others won’t. The judges that won’t hear it have the opinion that the case is closed and you are not permitted to file motions. If that is the case you must rely on judicial review or file a modification action.While emancipation may result in termination of child support, it is possible for the child’s circumstances to change and to become dependent again.
  91. Who gets to claim the children as dependents for tax returns?Starting in 2018 the child dependency does not exist anymore. In 2017 Congress reformed tax law by passing a law called the Tax Cuts and Jobs Act. (called the “TCJA”) This law eliminated the child dependency exemption that allowed parents to reduce their taxable income due to supporting children. The TCJA allows a different way to reduce taxes due to children called the Child Tax Credit. (called the “CTC”). If a parent has very little taxable income they can still benefit from the Child Tax Credit. The CTC can result in a refund to a person who has low income. The CTC is “phased out” with for people with incomes over $200,000.00. Under the IRS regulations, the parent who resides with the children for more than 50% of the time can claim the CTC. The age cut off for children is 17 and no credit can be claimed for a child over 17.Prior agreements and judgments that specify which parent can claim the children as dependents may not apply to the CTC. At present the IRS has not indicated that parents can sign a document to give the credit to the other parent.
  92. What is bird’s nest custody?Bird’s nest custody or nesting is named after the way birds raise their young. Baby birds can’t fly so they stay in the nest. The parent birds fly in and out of the nest to take care of the babies. With bird’s nest custody the children stay in the home and the parents move in and out to spend their parenting time with the children. The parents have another residence where they live when they are not taking care of the children.There are two basic models for nesting custody:
    • The parents share one other residence in which they also move in and out regularly.
    • Each parent has a separate residence.

    The advantages of a bird’s nest arrangement for the children are stability and consistency. They don’t have to worry about packing and moving every week or so. They don’t miss activities or plans with friends.

    If the parents use the single alternate residence model the entire arrangement can make separation more affordable. The alternate residence can be a studio or one bedroom apartment. This is much less expensive than a two or three bedroom apartment for each parent so that the children can spend overnights with each.

    The problems with nesting usually outweigh the benefits. The parents usually have issues with housekeeping, stocking of food and supplies, and privacy. In my experience the parents start spying on the other. Of course this gets worse when a parent starts dating. Few people tolerate their ex-partner entertaining a new romantic partner in their bed.

    If the parties use the two alternate household model the problems still remain for the residence with the children but not for the other residence. However, the parties move from living in one residence to three. It takes much more money to maintain this model and very few people have the resources or the desire to pay the bills for three households.

  93. Does anything different have to be done when divorcing a spouse in the military?Any civil action filed against a person who is on active duty in the military must comply with the Service Members Civil Relief Act. If the Service Member Spouse does not respond to the Court action after being served then the Plaintiff in the divorce needs to bring a motion requesting the Court to appoint a lawyer to represent the active duty spouse. The Military spouse also has the right to request that the divorce be stayed for a period time due to the military service of the Defendant.
  94. What is abandonment of property in a divorce?There is no such thing as abandonment of property in a Massachusetts divorce. Massachusetts divides property based on a concept of equitable division. There are a number of factors for a judge to consider when dividing property. Moving out of the marital home is not one of these factors.

    If Massachusetts punished people who moved out of the marital home then it would cause people who are married to an abuser to remain in the abusive household. This would be unconscionable.

  95. I am scheduled to appear in person for a court hearing in Probate Court. Can I change this to a virtual hearing?Probate and Family Court holds virtual hearings using Zoom, telephone, or other programs for many matters. When the Court schedules an in-person hearing the parties can file a joint motion to change to a remote or virtual hearing. The court now has an official form for that purpose: Assented to Motion for All Parties to Appear Remotely. The completed form is submitted to the court for administrative action. In the event that one party wants to appear in court for a hearing remotely then a separate motion must be filed and marked for hearing as any other motion is scheduled for hearing. In the event there is a last minute need to appear remotely which is caused by unexpected events then a motion needs to be prepared and the clerk’s office needs to be called. A common reason for such last minute motions is that a person is sick with Covid and is not permitted to appear in Court in person.
  96. What happens to the house in a divorce?For many divorcing couples, their house is the largest asset in the marital estate. One of the major issues that couples fight over is the house. Parties frequently think that they will get a larger portion of the marital estate if they can keep the house. A house can mean security and stability. For many people, the concept of relocating and finding new housing can be a scary and difficult proposition.In a short term marriage where the house is owned by only one spouse, it is more likely that that spouse will keep the house. In other divorces the title to the house is unlikely to make a difference. The court can award the house to either spouse regardless of the title to the property.When deciding what to do with the house it must first be determined which spouse, if any, can afford to live in the house after divorce. This requires understanding of income (including alimony and child support if applicable), expenses for the house, and the ability to refinance the house. If a party won’t be able to afford to live in the house after divorce then they can’t end up with the house after the divorce.
    The common resolutions for the house are as follows:1. Sale The parties sell the house and divide the proceeds of sale.
    2. Buyout. One party keeps the house and pays the other spouse a sum of money as a buyout. Frequently, this money is obtained by refinancing the marital home.
    3. Co-ownership with exclusive use and possession with only one spouse. This occurs when one spouse can afford the current expenses for the house but can’t afford to refinance and buyout the spouse. Usually, the parties agree that by a designated date the spouse occupying the property will refinance and buyout the other spouse or sell the house with the proceeds split according to the agreement. It is not unusual for couples with children to agree to sell the house when the children graduate high school or college. This has the advantage of providing stability for children. However, it can be problematic for the non-occupant spouse. Many people will not qualify for another mortgage or even car loans while they are still liable on the mortgage on the marital home. Sometimes the occupying spouse can refinance the existing mortgage without borrowing additional money to pay the spouse a lump sum. When interest rates are low, this can result in lowering mortgage payments.Making decisions about a house in a divorce can be emotional and difficult. An experienced lawyer can help parties resolve these issues and others in a divorce.
  97. What happens in Massachusetts to Life Insurance Policies and Payable on Death Clauses that are not changed after a divorce?Married couples frequently own assets that will automatically transfer upon the death of one spouse to the other spouse. These assets include life insurance policies, bank accounts, investment accounts, retirement accounts and other assets. Life insurance may specify the spouse as the beneficiary. Assets like bank and investment accounts may be owned by both spouses. This type of ownership has a right of survivorship. This means that the survivor of the two will automatically own the entire assets. Other accounts may have a clause that specifies the spouse will become the owner of the asset upon the death of the owner. While many people will change the survivor rights away from the spouse when they get divorced, some people don’t make these changes.Massachusetts has a statute that controls what happens to such assets after a divorce. G.L. c. 190B, § 2-804. Under this statute, unless there is a document that shows an order or an intent to transfer these assets after death, the surviving spouse is to be treated as if they died first. These payable on death rights can be specified in a separation agreement, judgment of divorce, contract between the former spouses, a will, or other written documents. However, without a written document any assets with a survivorship interest that existed before the divorce will not be transferred to the former spouse. Instead, they will be part of the estate of the deceased ex-spouse. Any assets acquired after the divorce are not subject to this law.When writing a separation agreement for a divorce or a will of a person who is divorced, the document should specify any assets that will be transferred to the surviving ex-spouse.
  98. How to File for Divorce in Massachusetts?A divorce can be either uncontested or contested. An uncontested no-fault divorce is when you and your spouse agree on all the terms of the divorce, such as division of property, alimony, child custody, and child support. A contested no-fault divorce is when you and your spouse do not agree on some or all of the terms of the divorce and need the court to decide for you.To file for an uncontested divorce in Massachusetts, you or your spouse must have lived in the state for at least one year, or the reason for the divorce must have occurred in Massachusetts and you must have lived in Massachusetts as a couple. You will need to fill out a Joint Petition for Divorce with a notarized separation agreement and financial statements for each spouse. You will also need to fill out a Divorce or Annulment, Certification Vital Statistics form and pay a filing fee.To file for a contested divorce in Massachusetts, you or your spouse must have lived in the state for at least one year, or the reason for the divorce must have occurred in Massachusetts and you must have lived in Massachusetts as a couple. You will need to fill out a Complaint for Divorce form. You will also need to fill out a Divorce or Annulment, Certification Vital Statistics form and pay a filing fee. The Court will send you a Summons which must be served on your spouse with the complaint for divorce by a sheriff or constable.
  99. How to dress when you go to court?If you are going to family court in Massachusetts, you should dress in a way that shows respect for the court and the judge. You should avoid wearing anything that is too casual, too revealing, too flashy, or too provocative. I advise clients to dress as if they were going to church. Your appearance can affect how the judge and the other parties perceive you and your case. You want to make a good impression and show that you are serious and respectful.
  100. Can a person receive both alimony and child support in Massachusetts?Alimony and child support are two types of financial support that a court may order one spouse to pay to the other after a divorce. Alimony is meant to provide for the reasonable needs of the spouse who has less income or earning potential, while child support is meant to cover the expenses of raising the children. In Massachusetts, a court may award both alimony and child support to the same spouse. If this occurs, alimony should be calculated first and then child support should be calculated based on the adjusted incomes after the award of alimony. Alimony and child support awards are based on different statutes. They have different formulas for calculation of each award and they have different duration limits.
  101. Can I Bring My Children to Court for My Divorce? Massachusetts court proceedings are open to the public which means that anybody has the right to watch court proceedings. However, judges control their courtrooms and Massachusetts judges consistently order that minor children are to be taken out of the courtroom for divorce proceedings involving their parents. Judges also exclude adult children in most cases when divorce proceedings occur between their parents. If the proceeding is between one parent and a step parent judges are more likely to let the adult children remain in the courtroom. In general, it is not advisable to bring your children to court for your divorce, unless they are required to testify as witnesses or they have a special role in the case, such as being interviewed by a court official. There are several reasons why bringing your children to court may be harmful or inappropriate, such as:
    • It may expose them to unnecessary stress and trauma, especially if the divorce is contentious and involves allegations of abuse, violence, or infidelity.
    • It may put them in a position of having to choose sides or express loyalty to one parent over the other, which can damage their relationship with both parents and affect their emotional well-being.
    • It may interfere with their normal routine and activities, such as school, homework, sports, hobbies, and socializing with friends.
    • It may influence the judge’s decision in a negative way, as the judge may perceive that you are using your children as pawns or weapons in your divorce battle.

    Therefore, unless there is a compelling reason to bring your children to court for your divorce, it is better to leave them at home or arrange for alternative care.

  102. Can I Continue to Get Alimony in Massachusetts if I Get Married or Cohabit? General term alimony, which is the most common type of alimony, “terminates upon the remarriage of the recipient spouse”. This means that if you get married again, you will no longer receive alimony from your former spouse. Cohabitation is defined as maintaining a common household with another person for a continuous period of at least three months. The statute provides that general term alimony “may be suspended, reduced or terminated upon the cohabitation of the recipient spouse”. Cohabitation means a relationship that is more than just roommates. Certainly cohabitation occurs if you live under the same roof with someone who you are romantically involved with. However, there are other factors that can result in a finding by a Judge that you are cohabitating. If you are cohabiting with someone or have remarried, your former spouse can ask the court to modify or end your alimony payments. If your cohabitation ends, you may request the court to reinstate your alimony.
  103. Can I Change the Terms of My Divorce Agreement after it Is Finalized? A separation agreement can be modified by the parties if they both agree to the changes and sign a new agreement. However, if one party does not agree, then the ability to change the judgment depends on how the original divorce judgment was created and the subject that you want to change. Furthermore, nothing can be modified without an agreement unless a party can prove a material change in circumstances. This means that being unhappy with the terms of the divorce won’t result in a modification. You must be able to show that the facts changed in a material manner.
    If the original judgment was created after a trial then everything can be modified except property division when there is a material change in circumstances without an agreement of the parties.
    If the original divorce was the product of a separation agreement by the parties that was incorporated by the Court into a divorce judgment then the separation agreement must be reviewed to determine if you can change the terms. Each separation agreement should have language that explains what can be modified in the future and what can’t be modified. This language is contained in a paragraph that uses the language “merges” or “survives.” A separation agreement that merges into the judgment can be modified by the court. A separation agreement that survives as an independent contract can’t be modified. Frequently separation agreements allow modification of some provisions but not others. All provisions relating to minor children can be modified. Frequently insurance provisions can be modified. Alimony and property division terms are usually not modifiable.
    Even agreements that can survive a divorce judgment may be modified if there was fraud, mistake, or duress involved in the original agreement. A court may also be able to modify the terms if a change in circumstances results in a party becoming supported by the state in the form of welfare payments or a similar type of change.
  104. How Do Courts Determine Child Custody in Massachusetts? Massachusetts law aims to provide shared custody whenever possible, presuming that both parents should have significant involvement in the child’s life. Child custody in Massachusetts is based on a “best interests of the child” standard to determine the child’s best interest the court will consider many factors including:
    • The overall well-being of the child. This includes physical health, emotional stability, and safety.
    • The child’s performance and attendance in school and their involvement in the community.
    • The child’s relationships with both parents and other family members. A strong bond with both parents is generally beneficial.
    • Any history of domestic violence, abuse, or substance use by either parent is considered.
    • The court may consider which parent has been the primary caregiver prior to the filing of the court litigation in the past.
    • The ability both parents to communicate and cooperate with each other.
    • Depending on the age and maturity of the child, their preference may be taken into account, although it is not the sole deciding factor.
  105. What can happen to a person if they don’t pay child support in violation of a court order? If you fail to pay child support as ordered by the court, you may face serious consequences, such as:
    • Having your wages, bank accounts, tax refunds, or lottery winnings seized by the Department of Revenue Child Support Enforcement Division (DOR/CSE) .
    • Having your driver’s license or vehicle registration suspended by the Registry of Motor Vehicles (RMV).
    • Having your professional license suspended. A professional license is any license to work at a profession such as lawyer, accountant, doctor, or contractor.
    • Having your professional license suspended. A professional license is any license to work at a profession such as lawyer, accountant, doctor, or contractor.
    • Being held in contempt of court and facing fines, jail time, or both.

    If you have trouble paying your child support or if your circumstances change, you can ask the court to modify your child support order. You can do this by filing a Complaint for Modification and following the court procedures

  106. Will I Lose My License If I Don’t Pay Child Support? In Massachusetts, failing to pay child support can lead to several enforcement actions, including the suspension of your driver’s license. You should address child support payments promptly to avoid such consequences.

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 website should not be considered a substitute for proper, individualized advice from an attorney.

Copyright (c) 2016 Alan J. Pransky, Esq.

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