David B. Feldman P.C. - Boston Divorce Attorney
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DIVORCE INFORMATION CENTER

  1. How do I obtain a divorce?
  2. Where do I file?  Where will my case be heard?
  3. What happens if I never lived with my spouse in Massachusetts?
  4. How do I file the Complaint for Divorce?
  5. What happens after the Complaint is filed?
  6. The Automatic Restraining Order Provision of Probate Court Rule 411
  7. Serving the Defendant
  8. The Defendant’s Answer
  9. The Mandatory Self Disclosure of Probate Court Rule 410
  10. Motions for Temporary Orders
  11. Parent Education Program Attendance
  12. Probate Court Rule 401 Financial Statement
  13. Discovery
  14. The Pretrial Conference
  15. Trial

1. How do I obtain a divorce?

In Massachusetts the probate and family court has exclusive jurisdiction over cases involving divorce.  This means that only the probate and family court has the power to grant a divorce.  In order to obtain a divorce you start by filing a complaint for divorce in the probate and family court where you currently reside or last lived together with your spouse as husband and wife.  You can not obtain a divorce from a divorce mediator.  Even if you are able to reach a settlement with your spouse with the help of a mediator you will still need to file a joint petition for no-fault divorce with the appropriate probate and family court.  Both parties will be required to appear in court at the final uncontested divorce hearing and it is up to the judge whether to approve the terms of the settlement contained in the separation agreement. The mediator is not permitted to represent the parties in court at the hearing on the joint petition for no-fault divorce.


2. Where do I file? Where will my case be heard?

Each county has its own probate and family court department.  The complaint for divorce is filed with the probate and family court in the county where one of the parties currently resides or the county where the parties last lived together as husband and wife.  If either party still lives in the county where the parties last lived together as husband and wife you must file the complaint for divorce with the probate and family court for that county.  Otherwise either party can file in the county where they currently reside.


3. What happens if I never lived with my spouse in Massachusetts?

Massachusetts has a residency requirement.  If you never lived with your spouse as husband and wife in Massachusetts you need to have lived for at least one year before you can file for divorce.


4. How do I file the Complaint for Divorce?

The complaint for divorce is generally filed by mail but can be filed in person in the registry of probate at the appropriate probate and family court.  Along with your complaint you will need a certified copy of your marriage certificate together with a check for the filing fee in the amount of $220.


5. What happens after the Complaint is filed?

Once the complaint for divorce is filed the court will give the case a docket number and assign it to a particular judge for hearing.  The judges are assigned randomly.  Once a judge has been assigned to a particular case they will hear the entire case from beginning to end.  There is no jury in the probate and family court and the judge assigned to your case will decide both the facts and how the law applies to the facts of your case.

The court will also assign the case to a particular time track in accordance with the court’s time standards.  Divorce cases are assigned to a 14 month track which means that it is the goal of the court to process the case from the start to finish within 14 months of the date of the filing of the complaint including a contested divorce trial if necessary.

Finally the court will issue the summons to the defendant which must be properly served on your spouse in hand generally by a constable or deputy sheriff.  If the plaintiff does not know and is not able to find out where the defendant resides then the plaintiff can make a motion to the court for an order that the defendant can be served by publishing a legal notice in the newspaper and by mailing a copy of the summons and complaint to the defendant by certified mail to his last known address..


6. The Automatic Restraining Order Provision of Probate Court Rule 411

The automatic restraining order provision contained in probate court rule 411 applies to both parties in the case.  It applies to the plaintiff immediately upon filing the complaint for divorce.  It applies to the defendant immediately upon being served with the summons and complaint.  The automatic restraining order remains in effect during the entire case unless modified by agreement of the parties or order of the court.

The automatic restraining order contained in probate court rule 411 provides as follows:

“(1) Neither party shall sell, transfer, encumber, conceal, assign, remove or in any way dispose of any property, real or personal, belonging to or acquired by either party, except: (a) as required for reasonable expenses of living; (b) in the ordinary and usual course of investing; (d) for payment of reasonable attorney’s fees and costs in connection with the action; (e) written agreement of both parties; or (f) by Order of the Court.

(2) Neither party shall incur any further debts that would burden the credit of the other party, including but not limited to further borrowing against any credit line secured by the marital residence or unreasonably using credit cards or cash advances against credit or bank cards;

(3) Neither party shall directly or indirectly change the beneficiary of any life insurance policy, pension or retirement plan, or pension or retirement investment account, except with the written consent of the other party or by Order of the court.

(4) Neither party shall directly or indirectly cause the other party or the minor child(ren) to be removed from the coverage under an existing insurance policy, including medical, dental, life, automobile, and disability insurance.  The parties shall maintain all insurance coverage in full force and effect.”

If a party violates the automatic restraining order provision of probate court rule 411 the other party can file a complaint for contempt with the court. If a judge determines that a party has violated the automatic restraining order they may be found in contempt and the judge will impose the appropriate sanctions.  A copy of the probate court rule 411 automatic restraining order is printed on the summons.


7. Serving the Defendant

After the complaint is filed with the court issues the domestic relations summons which must be served on the defendant.  The summons and complaint must be properly served in order for the court to have jurisdiction over the defendant. Service of the summons and complaint is the means by which the defendant is formally notified that their spouse has filed a complaint for divorce with the court.  In Massachusetts the court requires that the defendant be served by delivering to them in hand a copy of the summons and the complaint for divorce by a constable or deputy sheriff.  The defendant may also agree to accept service instead of being served by a constable or deputy sheriff by signing where indicated on the back of the summons in front of a notary public.  The court requires that the defendant be served within 90 days of the filing of the complaint but this time period can be extended.  If the defendant does not reside in Massachusetts they can be served by the equivalent of a constable or deputy sheriff authorized to serve civil process in the state or county where they reside provided that a copy of the summons and complaint is delivered to them in hand. If the party filing for divorce does not know where their spouse currently resides they may ask the court for an order that the defendant be served by publishing a legal notice in the newspaper and by mailing a copy of the summons and complaint to their last known address.


8. The Defendant’s Answer

The defendant is required to file a written answer to the complaint for divorce with the court no later than 20 days after being served.  Since the grounds for divorce in almost every case is the irretrievable breakdown of the marriage relationship the defendant’s answer is generally of little importance.  This is because the defendant can not stop the other party from being granted a divorce by denying that an irretrievable breakdown of the marriage relationship has occurred.  A divorce on the grounds of irretrievable breakdown requires no proof beyond the testimony by the plaintiff that the breakdown has occurred, continues to exist and that they do not believe that a reconciliation is possible.


9. The Mandatory Self Disclosure of Probate Court Rule 410

Probate court rule 410 requires that the parties exchange copies of certain primarily financial documents and information within 45 days of the service of the summons and complaint.  The purpose of this rule is to make that each party has a full disclosure from the other party with regard to all of the important financial aspects of the case.  This information is very important when it comes to making decisions with regard to an equitable division of marital property, child support and alimony.  This rule also helps make sure that neither party in anticipation of a divorce has disposed of or hidden any marital assets.  It is the philosophy of the court that financial decisions in a divorce should only be made after a full disclosure by both parties of all their assets and income.

The following is a list of the documents that the court requires each party to disclose as part of the divorce proceedings:

“(a) The parties’ federal and state income tax returns and schedules for the past three (3) years and any non-public, limited partnership and privately held corporate returns for any entity in which either party has an interest together with all supporting documentation for tax returns, including but not limited to W-2s, 1099s, 1098s, K-1s, Schedules C and Schedules E.

(b) Statements for the past three (3) years for all bank accounts held in the name of either party individually or jointly, or in the name of another person for the benefit of either party, or held by either party for the benefit of the parties’ minor child(ren).

(c) The four (4) most recent pay stubs from each employer for whom the party worked.

(d) Documentation regarding the cost and nature of available health insurance coverage.

(e) Statements for the past three (3) years for any securities, stocks, bonds, notes or obligations, certificates of deposit owned or held by either party or held by either party for the benefit of the parties’ minor child(ren), 401K statements, IRA statements, and pension plan statements for all accounts listed on the 401 financial statement.

(f) Copies of any loan or mortgage applications made, prepared or submitted by either party within the last three (3) years prior to the filing of the complaint for divorce.

(g) Copies of any financial statement and/or statement of assets and liabilities prepared by either party within the last three (3) years prior to the filing of the complaint for divorce.”


10. Motions for Temporary Orders

Pending a final resolution of the divorce by settlement or trial either party may file a motion for temporary orders with the court.  A motion is simply a request by a party that the court make an order regarding some issue in the divorce.  The temporary order will remain in effect until the end of the case unless modified by an agreement of the parties or further order of the judge.

Generally motions for temporary orders involve issues regarding:

  • Child Support;
  • Child Custody;
  • Visitation and Parenting Plans;
  • Alimony;
  • Health Insurance;
  • Uninsured Medical Bills;
  • Educational Expenses; and
  • Extracurricular Activities.

There is no requirement that either party file motions for temporary order when both parties are able to agree on these issues.  If a motion for temporary orders is filed by either party the parties can file a signed written stipulation instead or a court hearing on the issues raised in the motions.

On the day of the hearing on motions for temporary orders the parties and counsel are required to meet with a probation officer from the family service office in order to discuss the case in an effort to reach an agreement.  If the parties are able to reach an agreement on all the issues then they can write out a stipulation on a form provided by the court which can be approved by the judge.  If the parties are not able to reach an agreement on all issues then there will be a brief hearing.  The brief hearing will take place in open court before the judge assigned to the case.  The parties are sworn in a witnesses and anything that they say is considered evidence in the case.  The lawyer for the party that filed the motion sometimes called the “moving party” gets to speak first. Generally for a period of 5-15 minutes before the lawyer for the “opposing party” gets their turn.  Sometimes the judge will ask the lawyers or the parties questions.  In certain instances it may be appropriate for the parties to address the court directly.  In any event after the judge has given both parties an opportunity to be heard the judge will end the hearing.  Usually the judge does not announce their decision from the bench.  The judge usually will let the lawyer and parties know that he or she has learned enough about the facts of the case to make a decision by stating that they are going to take the matter “under advisement”.


11. Parent Education Program Attendance

Standing order 4-08 of the probate and family court department requires that both parties to a divorce action attend and complete an approved parent education program.  Attendance at an approved program is mandatory and both parties must register for an approved program within 60 days of the service of the summons and complaint on the defendant.  The program consists of two sessions and lasting two hours each and is given regularly at numerous locations around the state.  The cost of the program is set by the court at $80.00 per party payable in advance to the provider to offset the cost of the materials and facilitators.  No pretrial conference or trial will be held until the court receives a certificate of attendance from an approved program for each party.


12. Probate Court Rule 401 Financial Statement

At various times during the pendency of an action for divorce the parties are required to provide the court and each other with a properly completed probate court rule 401 financial statement.  Each party is required to attach a copy of a current pay stub and their last year’s W2(s) to the financial statement. The purpose of the financial statement is to assist the court and the parties in making decisions about child support, alimony and division of marital assets.  The probate court rule 401 financial statement is probably the single most important document in the case and must be updated every time the parties go to court. A properly completed probate court financial statement contains detailed information regarding an individual party’s income, assets and expenses and is a mandatory requirement for every court hearing. It is very important that the client fully cooperate with and assist their attorney in every way possible in preparing the financial statement.


13. Discovery

In addition to the mandatory self-disclosure required by probate court rule 410 and the probate court financial statement required by probate court rule 401 there are a number of other discovery mechanisms available to both parties.  These include interrogatories, request for production of documents, request for admissions and depositions.  These discovery devises are optional and are generally used to illicit additional information not provided by rule 410 and the probate court financial statement. The purpose of discovery is to ensure that both parties have a fully and complete disclosure of all of the other party’s assets and liabilities in order to assist them with settlement negotiations.  No party should enter into a settlement agreement with the other party without first obtaining a complete and accurate disclosure of all of the other party’s assets and liabilities.


14. The Pretrial Conference

The pretrial conference is one of the most important events in a divorce case.  The pretrial conference generally takes place approximately 6 months after the complaint has been filed.  The date for the pretrial conference is usually scheduled at the case management conference or at the hearing on motion for temporary orders.  If there is no motion for temporary orders or case management conference then either of the parties may request that the case be assigned for a pretrial conference. No case is scheduled for a pretrial conference prior to 6 months after the complaint is filed in order to allow the parties time for discovery.


15. Trial

A trial is generally considered a last resort after all attempts by the parties to settle the case have failed.

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