First: Is this going to be an uncontested divorce (where both parties are willing to get a divorce) or contested divorce (where there are issues that are going to be contested such as divorce itself and child custody)? This guide only deals with uncontested divorces where both spouse is in agreement on all the issues of the divorce. Issues that need to be resolved include the grounds for divorce, child support/custody, alimony and property division.
In Massachusetts, there is no such thing as legal separation. Therefore, you do not need to be separated from your spouse for any set period of time before asking the court for a divorce. In fact, you can still be living with your spouse before and even after a divorce.
How Do I File for an Uncontested Divorce?
You or your spouse needs to determine which county you (or your spouse, if they're living apart) reside in. Each county has its own probate and family court. Go to the courthouse and ask the divorce clerk for all the paperwork necessary to file an uncontested divorce. This should include: Joint Petition for Divorce, Affidavit of Irretrievable Breakdown, Separation Agreement template, R-408 Statistical form, Financial statement (x2) forms, Care and Custody Affidavit (if there are children involved), and a request for trial form. If you have children, you will also need a brochure of the list of Parental Education classes offered in the state. In cases where there are children involved, each parent must attend the Parental Education class before a divorce can be granted.
Take these forms home and after filling them out with your spouse and discussing all the aspects of the divorce, sign and notarize all forms as indicated and file everything back with the probate court.
I've Filed All the Forms: Now What?
One of the documents filed was a Request for Trial form. This form will be forwarded to the scheduling department and they will send you and your spouse a notice of trial. Since this is an uncontested matter, it is not so much a trial as it is a Final Hearing. Simply show up at the date and time listed.
What Happens at the Final Hearing?
The Final Hearing is when the Court officially determines whether your marriage has broken down and decide whether or not to grant the divorce. The court will ask each party about the relationship such as when you were married, whether there are children, when the marriage broke down, whether there is any hope of reconciliation. Then the court will ask if each party has read, understood and agreed to all the terms of the Separation Agreement. This Separation Agreement is the contract by which both spouses will be guided after the divorce. If everything is agreed upon, then the court will allow the divorce.
120 days after the Final Hearing, you and your spouse will be officially divorced. Even though you will not have to return to court for an additional hearing, remember that you are not divorced until the 120 days are up. Therefore, you cannot marry during that period and if it is tax season, you are still considered married for tax purposes.