FREQUENTLY ASKED QUESTIONS
- How do I get divorced?
- Do I need an attorney?
- Can my spouse’s lawyer represent both of us?
- How long will the divorce take?
- What are the grounds for divorce?
- Can my spouse stop me from getting a divorce?
- What happens if I do not want the divorce?
- How does the court decide who gets custody of the children?
- How much child support will I get?
- How does the court decide who will get the house?
- Am I entitled to alimony or spousal support?
- How does the court divide our assets including investment and retirement accounts?
- How much does it cost to get divorced?
- Can I date while separated?
- Do I have to go to the court?
- How do I get my former name back?
- What is a Separation Agreement?
- How do I know if my case is contested or uncontested?
- Will I get part of my spouse’s pension?
- What happens to the parties’ debts?
- Do I have to be living separately from my spouse in order to be able to file for divorce?
- How can I keep my legal fees down?
1. How do I get divorced?
In Massachusetts the only way a person can legally be divorced is by a Judgment of Divorce of the Probate and Family Court Department. The way to begin this process is by filing a Complaint for Divorce with the appropriate Probate and Family Court Department. You can not be divorced by a mediator or arbitrator. A mediator can assist the parties in reaching an agreement on the terms for the divorce settlement. But the parties still need to file a Joint Petition for Divorce with the court and to appear in court for an uncontested final hearing before the divorce will be granted.
2. Do I need an attorney?
Although the court can not require you to hire an attorney the services of an experienced lawyer concentrating on divorce and family law is essential if you want to make sure that your rights and those of your children are fully protected and that you do not make the wrong decision regarding settlement that you will have to live with for the rest of your life.
3. Can my spouse’s lawyer represent both of us?
It is unethical as a conflict of interest for one attorney to represent both parties in a divorce. Each party needs to be represented by unbiased independent counsel of their own choosing. The only exception is where the attorney is acting as a mediator. The attorney who has acted as a mediator between the parties can not represent either party in court. If the parties are able to work out the terms for a Separation Agreement with the mediator that can be filed in court and approved by a judge they will either have to represent themselves in court or hire another attorney to do so.
4. How long will the divorce take?
The length of time that the legal process takes until the court grants the Judgment of Divorce depends in large part how long it takes before the parties reach an agreement regarding settlement. In cases where the parties can not agree and it becomes necessary to have a contested trial can the entire process can take up to 1 ½ to 2 years.
5. What are the grounds for divorce?
Although Massachusetts has seven fault grounds for divorce including adultery, cruel and abusive treatment, gross and confirmed habits of intoxication, gross or wanton and cruel refusal or neglect to provide suitable support, impotency, sentence or confinement to prison and utter desertion, almost all cases are brought on the grounds of irretrievable breakdown of the marriage relation. Often many of the fault grounds are what precipitate the irretrievable breakdown of the marriage relationship. As a practical matter the grounds of irretrievable breakdown of the marriage relationship means that nobody is required to remain married to someone if they are unhappy with the relationship.
6. Can my spouse stop me from getting a divorce?
No your spouse can not stop you from getting divorced. The grounds for divorce of irretrievable breakdown of the marriage relationship is entirely subjective, there is no fault on the part of the other party that needs to be proved. The only evidence necessary in order for the divorce to be granted is your testimony that the relationship has irretrievably broken down.
7. What happens if I do not want the divorce?
The painful reality for many spouses is that the divorce will be granted whether you agree that the marriage relationship has broken down or not.
8. How does the court decide who gets custody of the children?
Issues involving custody are decided on the basis of what the judge thinks would be in the best interest of the child(ren)’s welfare. Custody is broken down into “legal” custody and “physical” custody. There is a presumption that both parties will have “joint” or “shared” legal custody after the divorce unless there is a history of domestic violence and/or restraining orders. Generally one party has primary physical custody and the other party has right to parenting time with the minor children. Depending upon the circumstances the court expects that the minor children will spend on average approximately one-third of their time with the non-custodial parent.
9. How much child support will I get?
The Judge that hears your case is required to determine child support in accordance with the child support guidelines on incomes of up to $250,000. Massachusetts recently revised its child support guidelines which took effect on January 1, 2009. The Court uses the parties’ Probate Court Rule 401 financial statement in order to compute the amount of child support. The Court is required to determine child support by using the guidelines and is not permitted to deviate from them except in certain limitations where application of the guidelines would be unfair to a particular party.
The child support guidelines uses a complicated mathematical formula to determine the amount of child support. The factors that are used in the formula are the parties’ respective incomes; the cost of child care; the cost of health, dental and vision insurance; existing support obligations for the children from a prior marriage or relationship, and the number of children.
The Court gives the recipient of child support the option of receiving the payments by means of a “wage assignment”. A wage assignment is an Order from the Court to the payor’s employer ordering them to take the child support payments directly out of the payor’s paycheck and to send them to the Commonwealth of Massachusetts Department of Revenue child support enforcement division. The child support enforcement division then sends the money directly to the recipient. The child support enforcement unit will also help the recipient collect any arrearages for unpaid child support by filing a Complaint for Contempt against the payor on their behalf. The child support enforcement unit also charges the payer penalty and interest on the unpaid balance of the arrearages.
10. How does the court decide who will get the house?
When it comes to decisions as to how to divide marital property between the parties Massachusetts is what is called an equitable division state. This means that the judge deciding your case has wide discretion in determining what he or she thinks is a fair and reasonable settlement after taking into consideration all eighteen factors listed in Massachusetts General Laws, Chapter 208, Section 34. However in the vast majority of cases the judge divides the marital assets equally between the parties.
11. Am I entitled to alimony or spousal support?
Unlike child support there are no mandatory guidelines or mathematical formula that the Judge is required to use when determining whether to or how much alimony or spousal support to award a particular party. In determining the amount of alimony, if any, to award a party the Judge is required to take into consideration the 18 different factors listed in Massachusetts General Laws, Chapter 208, Section 34. The 18 Factors that the Judge is required to take into consideration are:
- Length of marriage.
- Conduct of the respective parties during the marriage.
- Ages of the respective parties.
- Health of the respective parties.
- Station of the respective parties.
- Occupations of the respective parties.
- Amount and sources of income of the respective parties.
- Vocational skills of the respective parties.
- Employability of the respective parties.
- Estates of the respective parties.
- Liabilities of the respective parties.
- Needs of the respective parties.
- Current needs of the minor children of the marriage.
- Future needs of the minor children of the marriage.
- Opportunities available to the respective parties for future acquisition of capital.
- Opportunities available to the respective parties for future acquisition of income.
- Contributions of the respective parties in the acquisition, preservation or appreciation in value of their estates.
- Contributions of Husband and Wife as homemaker.
Judges in the Probate and Family Court are given wide discretion in determining what they think is fair and reasonable given the circumstances of a particular case. The decision of a Judge of the Probate and Family Court will not revised on appeal unless the appellate Court finds that the Probate Court Judge clearly abused their discretion or made an error determining the law applicable to the case.
As a practical matter in determining the amount of alimony, if any, to award a party Judges generally give great weight to the length of the marriage and whether there are any children. Most Judges divide marriages into three groups, short, intermediate and long term marriages. Most Judges will not award alimony where there was a short term marriage generally considered to be less than 5 years. The decision to award alimony based upon the intermediate marriage or 5-10 years can be tricky and there is a great divergence of opinion among Judges. The decision to award alimony in an intermediate length marriage is done on a case by case basis and is entirely dependent upon the facts of each individual situation.
The decision to award alimony where there has been a log term marriage of 10-15 years or more particularly if there are children is an entirely different matter. Alimony is routinely awarded where one party has a far greater earning capacity than the other. This is particularly true where one party gave up their career to stay at home to raise the children or where one party earns a great deal more money that the other party.
12. How does the court divide our assets including investment and retirement accounts?
All assets accumulated by the parties during the course of the marriage including all bank accounts; investment accounts such as mutual funds, stocks, bonds, etc; retirement accounts such as IRAs and 401(k)s, and; pensions are considered part of the marital estate and as such are marital property. It makes no difference to the court which party accumulated the asset or whether the asset is in the name of one party or the other or both. As long as the asset was accumulated by the parties during the marriage the court will consider the property as marital property and as part of the marital estate.
As discussed previously when it comes to decisions as to how to divide marital property between the parties Massachusetts is what is called an equitable division state. This means that the judge deciding your case has wide discretion in determining what he or she thinks is fair and reasonable settlement after taking into consideration all eighteen factors listed in Massachusetts General Laws, Chapter 208, Section 34. However in the vast majority of cases the judge divides the marital assets equally between the parties.
13. How much does it cost to get divorced?
Virtually all attorneys experienced in handling divorce and family law cases charge for their services on an hourly basis. Different attorneys charge different hourly rates depending primarily upon the number of years of experience and whether they concentrate on divorce and family law. The usual arrangement is that the client signs an hourly legal fee agreement with the attorney and pays a retainer to be used toward payment of the fees and expenses in the case. The attorney holds the client’s retainer in escrow in their client’s funds account. The lawyer sends the client an itemized bill usually monthly and uses money from the retainer to pay the bill. The fee agreement usually provides that if the retainer goes below a certain amount that the client must replenish the retainer. The standard domestic relations hourly fee agreement provides that the lawyer will bill the client for his time in 1/10 of an hour increments. The client is also responsible to pay any out-of-pocket costs in the case such as, court filing fees, sheriff fees, constable fees, appraisal fees, expert fees, court reporter fees, etc.
14. Can I date while separated?
Dating during the pending of the divorce action is not prohibited but one should use an abundance of caution particularly where there are young children involved. It also makes great sense to be as discrete as possible since you do not want to inflame what may be already an extremely emotional experience for your spouse.
15. Do I have to go to the court?
Yes you will have to go to court probably at least one time for the final uncontested divorce hearing. If all of the issues in your case can not be resolved amicably you may have to go to court several times or more for a hearing on motions for temporary orders, a case management conference, the pretrial conference, status conference and possibly for a trial. If your case is settled amicably and there is a duly executed Separation Agreement that can be approved by the judge it is possible that your appearance at the final uncontested hearing can be waived by the court if having to appear in person would be a great hardship such as because you have moved let say to California or Alaska during the pending of the case.
16. How do I get my former name back?
The court will allow you to resume using your former name after the divorce is granted if you request permission to do so. Your lawyer can put the request in the initial complaint for divorce or make a motion at the time of the final uncontested divorce hearing. If you want to resume your former name do not forget to remind your lawyer to make a request to the court that you be permitted to do so.
17. What is a Separation Agreement?
18. How do I know if my case is contested or uncontested?
19. Will I get part of my spouse’s pension?
20. What happens to the parties’ debts?
21. Do I have to be living separately from my spouse in order to be able to file for divorce?
22. How can I keep my legal fees down?