How to obtain a divorce in Massachusetts
To obtain a divorce in Massachusetts, one party to a valid marriage files a "Complaint For Divorce." The Complaint is filed in the County where the parties last lived as husband and wife (if one party still resides in that County.) (If the "cause of action" occurred outside Massachusetts, there is a one-year residency requirement before the now Massachusetts resident can file for a Divorce.) In the past, there had to be a fault upon which to base the Complaint. Today, there is the "irretrievable breakdown" cause of action, also known as the "no fault" divorce. In the "no fault" situation, one party to the marriage can file the Complaint (pursuant to G. L. ch. 208 section 1B); or, the parties together can file a Joint Petition (pursuant to G. L. ch. 208 section 1A). See FAQ about divorce in Massachusetts.
Most divorcing parties choose to file for a "no fault" divorce. There are procedural differences between the two "no fault" situations . When a joint petition is filed, the parties must be prepared to file the written "Separation Agreement" within 30 days. This can be a difficult requirement. On the other hand, when one party files the Complaint, there is a statutory waiting period of six months before the Court will have a Divorce hearing. In my experience, it is best to have one party file the Complaint and then work diligently on the terms of the "Separation Agreement" while the statutory clock ticks away. If the parties have been able to come to terms before that six month time period, the Complaint can be amended to a Joint Petition. "No fault" does not mean "uncontested."
What is Required to file for divorce?
- Marriage Certificate;
- Complaint or Petition;
- Summons or Return of Service;
- Form R 408 Statistical Form;
- Financial Statement from both parties; and
- Certificate of attendance at a Parent Education Program (if there are minor children).
In addition to the documents above which are part of the record of the case, the Rules of Domestic Relations Procedure require mandatory self disclosure of a whole host of financial records. (See Supplemental Rule 410 below) Also, the filing of the Complaint for Divorce effectuates an automatic restraining order requiring both parties to preserve marital assets. Failure to abide by the restraining order may be deemed a contempt of Court.
When negotiating the Separation Agreement, the factors that seem to carry persuasive weight with the Judges are: length of the marriage, health of the parties, amount and sources of income, employability and special needs of children. (See factors list at end). The assets available for division include all the normal stuff and such things as pensions and inherited property. In Massachusetts, all assets acquired during the marriage without regard for the title are deemed "marital assets." In a medium or long term marriage, assets acquired by one party before the marriage, in most instances, will be considered a "marital asset."
Alimony is awarded based upon need. (Length of the marriage is a very important factor to alimony awards.) There is no set formula or time period. This is an area that needs discussion.
Child support, in most cases, is set according to the "Child Support Guidelines" in effect at the time the Court makes the child support order. Guidelines support orders are computed using gross income figures. Income includes: salary and wages (overtime and tips); commissions; severance pay, royalties, bonuses, interest and dividends, partnerships or self-employment income, social security, veterans benefits, workers' and unemployment compensation, pensions, annuities, income from trusts, lottery or gambling winnings, net rental income and so forth.
A "Complaint for Divorce" is an civil action. If the parties cannot mutually come to terms about the division of assets, custody and support (and all the particulars of each situation), then there is a trial and the Court renders a Judgment (weighing the "section 34" factors offered into evidence, see list at end). At the time of the hearing or trial, the Court enters a "Judgment of Divorce Nisi" which becomes "Absolute" 90 days later.
Typically, your Divorce attorney will require a retainer and bill for services by the hour. The amount of the retainer often depends upon your attorney's assessment of the amount of contention he or she perceives to exist between the parties. The client should expect to sign a "Fee Agreement" and replenish the retainer whenever the time billed has depleted it. The Client understands that due to the personal nature and circumstances of domestic relations matters, no precise estimate of legal fees can be given.