1. How long do I have to live in Massachusetts prior to filing for divorce in Massachusetts?
If the cause of the divorce occurred outside of Massachusetts, the plaintiff must reside in Massachusetts for at least one year prior to the filing of the action. If the cause of the divorce occurred within Massachusetts, at least one of the parties must be a Massachusetts resident.
2. 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.
3. 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.
4. How much child support should I get?
Massachusetts has enacted child support guidelines that are presumed to be the correct amount of child support due. These guidelines are available at the State website. A worksheet to calculate the amount can be found at http://www.dor.state.ma.us/apps/worksheets/cse/guidelines-short.asp. The court may deviate from the guidelines if the application of the guidelines would be unjust or inappropriate under the circumstances.
5. What is "venue," and what is the proper venue for a divorce case or which court do I file a Massachusetts divorce?
"Venue" refers to the proper local court to file a divorce case. In Massachusetts, divorces are filed in the Probate and Family Court. The proper venue for a divorce action is the county of the parties' last residence as husband and wife. If neither spouse still lives in the county of the last marital domicile, the divorce may be filed in the county where either party resides.
6. Can I get Alimony?
Alimony is determined by G.L c. 208, § 34 which lists the factors a judge must consider in awarding alimony. There are approximately fourteen mandatory factors and four optional factors. Alimony is not appropriate in every case. Alimony may be appropriate in the following examples:
a. One spouse can't support themself due to health or handicap issues.
b. The marriage was not short term and there is a significant difference in income between the spouses.
c. One spouse has excess income over their needs and the difference in net income between the spouses is very large.
d. Other cases not described here.
Alimony may also be appropriate as a way to reduce taxes when child support is awarded. Since alimony is deducted from income for taxes to the payor and included as income for taxes to the recipient, it may be advantageous to treat child support as alimony.
7. 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.
8. Can men receive alimony?
Massachusetts divorce law is gender neutral. We have an Equal Rights Amendment that mandates that the courts treat people equally without bias based on gender. This means that in the correct circumstances, men can receive alimony. Generally, alimony is paid from the family bread winner to the spouse that was not the bread winner during the marriage. This means that if the wife was the major income earner during the marriage, she could pay the husband alimony. However, there are many factors that determine if alimony is appropriate in any particular case. Alimony is not automatically given in divorces.
9. What is spousal support?
Spousal support is another term for alimony.
10. What factors will the court consider when determining how much alimony to award to a party?
Alimony is based on consideration of the following factors:
! the length of the marriage
! the conduct of the parties during the marriage
! the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties
! the opportunity of each for future acquisition of capital assets and income
! the contribution of each of the parties in the acquisition, preservation or appreciation in value of their respective estates
! the contribution of each of the parties as a homemaker to the family unit.
11. 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.
12. What is meant by "grounds for divorce"?
"Grounds" for divorce is the "reason" for divorce. The State will only alllow a divorce for a recognized reason as set forth by statute. The most common reason for divorce is "Irretrievable breakdown of the marriage." Irretrievable breakdown is also called "no-fault divorce." This means that you can get divorced if you no longer love your spouse. In addition, Massachusetts has fault grounds for divorce including:
a. Adultery;
b. Impotency;
c. Desertion for at least one year;
d. Addiction to drugs/alcohol;
e. Cruel and abusive treatment;
f. Refusal to support spouse when able; and
g. Confinement in penal institution for 5 or more years;
13. 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.
14. What is joint custody?
Joint custody means shared custody. There are two concepts in custody: legal and physical. Legal custody is the power to make decisions for a child such as religion, medical, educational, and extra curricular matters. When there is joint legal custody, these decisions should be made together. Physical custody refers to the physical presence of the child. Joint physical custody means that the child's time is split between the two parents. The parent with the child will make the ordinary, day to day decisions without consulting the other parent. In divorces, joint legal custody is the usual result. Usually, one parent has more parenting time (physical custody) with a child than the other parent.
15. My spouse and I don't agree on child custody and visitation issues. How will the court decide these issues?
Custody is decided by determining what is best for the child. The court may award custody to either parent, regardless of gender, based on the best interests of the child. Generally, custody is viewed as allocating time with each parent. The most common custody order is school nights with the "custodial parent" and the other time, including weekends, holidays, and vacations, split between the two parents. In addition, it is common for the "non-custodial parent" to take the child to dinner one evening each week.
16. 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.
17. 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.
18. Is a simplified divorce procedure allowed in Massachusetts?
Yes. If the parties agree on all issue, a simplified divorce procedure is available. An action for divorce based upon an irretrievable breakdown of the marriage may be commenced by filing a joint petition for divorce. The joint petition must be accompanied by a sworn affidavit alleging that the marriage has suffered an irretrievable breakdown along with a separation agreement. The parties can request a hearing date on the same day the papers are filed.
19. 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.
20. I'm separated from my spouse, can I date?
Adultery is still a crime in Massachusetts although it is extremely rare to find a prosecution. Many people start to date before they separate from their spouse and never face a criminal prosecution. It may be wiser to consider the effect dating will have on your divorce. If your spouse knows about your dating, it may make a divorce more difficult and expensive. If you are discreet about other relationships, there may be no adverse effects from dating before you are divorced. If your spouse introduces evidence of your dating at a divorce trial, it is unlikely that a judge will pay much attention to your dating as long as it doesn't effect your children, income, expenses, or assets.
If you shower your dates with expensive gifts, you can expect an adverse reaction from a judge as such action is likely to be viewed as a violation of the automatic financial restraining order.
21. 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.
22. How is property divided in a divorce?
Massachusetts allocates property between spouses based on an equitable division of property. This means that the court will consider the following factors in allocating property:
! the length of the marriage
! the conduct of the parties during the marriage
! the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties
! the opportunity of each for future acquisition of capital assets and income
! the contribution of each of the parties in the acquisition, preservation or appreciation in value of their respective estates
! the contribution of each of the parties as a homemaker to the family unit.
Equitable division does not mean an equal division of property although an equal division of property is common. Equitable division means that the property will be divided fairly.
23. What happens to retirement funds in a divorce?
Retirement funds are placed into two categories: acquired before the marriage or acquired during the marriage. Retirement funds that were owned at the time of divorce are generally not subject to division in a divorce. However, growth of an account owned prior to divorce is treated as acquired during the marriage. Retirement funds acquired during the marriage are subject to division as any other asset of the marriage is treated. As an example, assuming the husband has a 401k account that he owned prior to marriage. At the time of marriage, the value was $100,000.00. During the marriage, the husband contributed an additional $100,000.00. The account also increased due to the market and interest by an additional $50,000.00 for a total value of $250,000.00. Under these circumstances, $100,000.00 of the account will not be subject to division and the additional $150,000.00 is subject to division as a marital asset.
Retirement funds may require a special court order to divide the asset pursuant to a divorce. If so, the court will issue a Qualified Domestic Relations Order which is commonly called a QDRO to divide the asset. The QDRO must be prepared by the parties and the party that controls the retirement funds may need to be consulted.
24. 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.
25. What are temporary orders?
Temporary orders are orders issued by a Court before the final judgment enters in a case. Frequently people in a divorce are unable to cooperate with each other. A judge will issue orders during the pendency of a divorce to address issues that can't wait until the final judgment. The following issues are typically addressed in temporary orders:
! Should one party vacate the house?
! Which parent will be primarily responsible for the custody of the children?
! How often will the other parent visit the children?
! What money is paid from one spouse to the other for child support or spousal support?
! Who gets to use the individual assets like cars, furniture, etc.
Many other matters can be addressed in temporary orders as well.
26. How long will it take for my divorce to become final?
A divorce will be final ninety days after the Judge issues a divorce decree which is called a decree nisi. After this waiting period, the Court will issue a final divorce decree called a decree absolute. The decree nisi issues when the Judge grants the divorce. If the parties have an uncontested divorce with a separation agreement, the Judge must first approve the agreement which then has an additional thirty day waiting period. In these cases, the divorce generally becomes final 120 days after the parties appear before the Judge. However, this may be delayed a few more days as the waiting periods start when the Judge signs the decree and not when the parties appear before the Judge.
The waiting parties allow the parties to file an appeal (only in contested divorces), reconcile, or notify the court if they believe the other party fraudulently hid assets or income.
27. 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.
28. We were just married and I realize this was a mistake. Can I get the marriage annulled?
Annulment is a declaration that the marriage never existed. If there was an impediment to the marriage such as a party was still married to a previous spouse then the marriage never occurred. An unwise marriage is still a marriage and needs to be terminated by a divorce. Fraud, undue influence, or legal impediment are possible grounds for annulment.
29. After divorce, will I be entitled to some portion of my husband's pension?
Pensions are not subject to division for the value owned prior to marriage but are subject to division for the value that accrued during the marriage. If the husband had a $25,000.00 pension or retirement account at time of marriage and it has increased to $100,000.00 at the time of divorce, then the $75,000.00 increase is subject to division. Pensions are generally divided by an order of the Court called a Qualified Domestic Relations Order or a QDRO.
DISCLAIMER
This memorandum is for general informational purposes only and does not constitute legal advice or create an attorney-client relationship. The answers given above are based on Massachusetts law and practice and should not be considered as applicable to any other state. This web site should not be considered a substitute for proper, individualized advice from an attorney.
Copyright (c) 2010 Alan J. Pransky, Esq.
