After you and your spouse have filed a Joint Petition for Divorce and accompanying documents, and assuming everything is in order, the court will schedule your uncontested divorce hearing. Typically, both spouses will be present at the hearing, along with the parties’ attorneys, in the event that attorneys were hired. The judge will review with you and your spouse the date and place of marriage, the date your marriage broke down, whether children were born or adopted of the marriage, and whether there is any hope of reconciliation. The judge will then review the separation agreement and, if he or she has any questions, will discuss the terms of the separation agreement with the attorney(s) and/or with you and your spouse. If everything is in order, the judge will grant the divorce. In the case of a divorce filed under §1A, the divorce judgment does not become final until 120 days after your hearing date.
In most cases, as stated above, both you and your spouse must attend your uncontested divorce hearing and testify under oath that your marriage has suffered an irretrievable breakdown. You also must attend so the Judge can ensure that you have read the separation agreement, understand it, and signed it voluntarily and also made an accurate and complete disclosure on your financial statement.
It is possible for only one party to appear at the hearing if there are special circumstances that prevent the other party from attending. Most commonly, a special circumstance occurs when one party resides outside of Massachusetts and/or it will be a financial hardship for one party to travel and attend the hearing.
If a special circumstance exists, it is possible for a spouse to request that the court "waive" his or her appearance at any final uncontested hearing for divorce. This type of request will often be allowed when, as suggested above, there is an out-of-state spouse who is actually unable to attend the hearing due to financial or other hardship, and where all of the parties' financial statements, affidavits, agreements, and other paperwork is in order and up-to-date. It also helps if the out-of-state spouse can hire an attorney to appear in court on their behalf and answer questions about the intention of the parties, the separation agreement, etc. An example of a financial hardship would be a spouse’s inability to purchase a roundtrip plane ticket and/or secure a hotel room in order to attend the hearing, or where overseas travel or deployment would create an unnecessary delay in obtaining a divorce.
A party requesting that he or she be exempt from attending the divorce hearing must file a Motion to Waive Appearance and an Affidavit in Support of Motion to Waive Appearance. The affidavit must state the reasons why a party is requesting that he or she be allowed to not attend – such as he or she lives in another state and it would be a financial hardship to fly to Massachusetts and attend the divorce hearing, or he or she will be traveling out of the country for business and he or she will be unavailable.
This affidavit must also state that the party has reviewed the separation agreement fully and completely and finds it to be fair and reasonable; that the party has reviewed his or her financial statement and attests to its accuracy; that the party has reviewed his or her spouse’s financial statement and believe it is accurate; and it should state that the party will be available by cell phone or by some other form of communication during the hearing, especially if the non-attending party is unrepresented by counsel.
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