What is a Fault Divorce?
There are three different statutes in Massachusetts that provide grounds upon which the Probate & Family Court can grant you a divorce. M.G.L. Chapter 208 Section 1 authorizes the Courts to grant divorces to residents of Massachusetts for a specific list of "fault" situations: adultery; impotence, desertion continued for one year; gross and confirmed habits of intoxication caused by voluntary and excessive use of intoxicating liquor, opium, or other drugs; cruel and abusive treatment; or, if a spouse being of sufficient ability, grossly or wantonly and cruelly refuses or neglects to provide suitable support and maintenance for the other spouse. These are called "fault" divorces because obtaining a divorce for any of these reasons requires that you first prove that one spouse has caused the divorce by doing one of the things listed, i.e. it is "their fault" that the marriage has ended.
What is a No Fault Divorce?
Massachusetts General Laws Chapter 208 Section 1A and 1B authorize the Courts in Massachusetts to grant divorces to residents of Massachusetts for "an irretrievable breakdown of the marriage." The irretrievable breakdown standard simply requires that the Court find that at least one of the parties in the marriage believes (subjectively) that their marriage is over and that there is no chance of reconciliation. Your attorney can advise you as to the proper grounds for filing your divorce. However, it is unusual under the current state of Massachusetts law to file for "fault" divorces because they require this extra evidence of fault before a divorce can be granted. In the case of a divorce under "irretrievable breakdown" there is no need to make this extra showing to the Court.
How do I start the Divorce process?
If both parties agree that there has been an irretrievable breakdown of the marriage and agree on all other issues related to their marriage, as described in a Separation Agreement, then you can file a Joint Petition for Divorce. If only one person in the marriage is ready to tell the Court that the marriage is over, or if you cannot agree with your spouse on other issues related to the divorce (such as the division of property, custody of children, amount of support, etc.), then you must file a Complaint for Divorce. In addition to beginning the litigation process, immediately upon the filing of a Complaint for Divorce, you are both restrained from taking specific actions with respect to your assets and liabilities. Along with the Summons the Court will provide to you, a Notice to Plaintiff describing the Rule 411 Automatic Restraining Order. There are exceptions to Rule 411 which you should discuss with your attorney.
What is Discovery? Is there any mandatory discovery?
After the service of the Complaint for Divorce and filing of the Answer, you are required to exchange certain information with your spouse in order to allow you both the ability to make informed decisions regarding the settlement of your case. In addition, if you are unable to reach a settlement of your case, the documents and information produced during discovery will make up the evidence that you will present to the Judge at a trial. This process of exchanging information is called Discovery. Supplemental Probate Court Rule 410 ("Mandatory Self-Disclosure") provides that, within 45 days after the date of service of the Summons, each party must serve on the other party specific documents designed to disclose the basic financial information necessary to settle a divorce case. This includes tax returns for the past three years, last four (4) paycheck stubs, bank account statements, health insurance documentation, etc.
What is a Pre-Trial Conference?
Approximately six (6) months after the filing of a Complaint for Divorce the Court will schedule a Pre-Trial Conference. If the Court does not automatically schedule this conference, then either party can request that a Pre-Trial conference be scheduled by filing a written request with the Court. The goal of a Pre-Trial Conference is to help the parties narrow the issues in their case prior to the scheduling of a trial and if possible settle the case. Upon the scheduling of the Pre-Trial Conference, the Court requires that the parties hold an in person Settlement Conference at least one week prior to the Conference, and that if the parties are unable to reach an agreement at the Settlement Conference, then both parties shall file a Pre-Trial Memorandum informing the Court of what issues they agree upon, and what issues they disagree upon. Upon review of these Memos, the Judge often provides feedback which can assist the parties in settling formerly disputed issues.
What is a Divorce Agreement (also called a Separation Agreement)?
If you and your spouse are able to reach a complete settlement, it will be reduced to a written Separation Agreement by your attorney. A Separation Agreement is lengthy and very specific as to the details of settlement in all aspects of your case. The Agreement is submitted to the Court for review by a Judge and must be approved by a Judge at a Court hearing. You and your Spouse will be required to attend that hearing in person. The Judge will review the Financial Statements of the parties and the Separation Agreement and if the Court determines that the written Separation Agreement is fair and reasonable, especially to any minor children, the Court will incorporate the terms and conditions of the written Separation Agreement into its Judgment of Divorce Nisi.
What happens if we don't settle?
At a trial of your case, both parties will have the opportunity to present evidence and testimony to the Judge. Because the Judge is limited to hearing only the evidence that is admissible under the Rules of evidence, there may be facts about your case that the Judge is not able to hear about. At the conclusion of hearing admissible evidence, your attorney will submit proposed Findings of Fact and a proposed Judgment to the Judge, which will include all of the decisions that you want the Judge to make based on the evidence presented. After reviewing both parties' proposals and the evidence, the Court will issue a Judgment of Divorce Nisi and it will become Absolute after a further ninety (90) days. In addition to any child related issues, the Court will determine the division of marital property, debts, income and expenses. The Court is guided by M.G.L. c. 208 Section 34. in dividing personal property and/or assigning alimony.