Massachusetts Divorce 101
The process of divorce can be an extremely difficult and traumatic experience, emotionally and financially. To add to that, divorce necessitates decisions about almost every major aspect of your life including housing, employment, your children, health insurance, retirement taxes, etc. In fact, it is hard to imagine other times in one's life when a person has to make so many major life decisions, often while in a state of depression, anxiety, shock and/or anger.
Understanding the divorce process and options for resolving your divorce is at least one step towards making the divorce process easier. What follows are some facts and information that will help you get the lay of the land if you are going through or contemplating a divorce.
- Massachusetts is a "no-fault" state. This means that a person does not have to find or prove fault with his or her spouse to get divorced. It is enough that one person has concluded that the marriage has irretrievably broken down. As a practical matter, what this means is that neither party can prevent the divorce from happening. That is different, however, from the issues of what the custodial and financial terms will be. That will be governed either by the agreement of the parties or the judgment of the court if the parties do not agree.
- In most cases the conduct of the parties will not be particularly relevant or important to the resolution of the divorce. Except in cases where there has been financial misconduct or misconduct which affects the children, the court will not be particularly interested in the conduct of the parties. The court is primarily interested in dealing with the finances of the parties and dealing with parenting issues.
- A divorce can be started in two ways. A "1B" divorce (1B stands for the section of General Laws chapter 208 covering this area of law) is commenced when one party files a Complaint for Divorce in the Probate and Family Court. Typically, a copy of the complaint is then served upon the spouse by sheriff (unless he or she agrees to voluntarily accept service) and the spouse has 20 days to file an answer.
- A "1A" divorce is also known as a joint petition for divorce or an uncontested divorce. This action is filed by both parties together and must be filed with a signed divorce agreement (often known as a "Separation Agreement"). The agreement and petition are filed with various other court documents including a request for an uncontested hearing.
- Once a divorce action is filed, there is an automatic restraining order against dissipation or transfer of assets or insurances. This means that after the divorce is filed, neither party can move, transfer, sell, assign or do anything with marital assets and with any insurance coverages without the consent of the other person or permission of the court.
- As part of the divorce process, you will need to fill out a financial statement which lists your income, expenses, assets and liabilities. This form is extremely important and should be as accurate as possible. If you earn over $75,000.00 per year, you will need to fill out a long form financial statement. Otherwise you would fill out the short form. The divorce process will often also include a "discovery process" in which the attorneys will send out requests for certain documents and interrogatories (written questions) pertaining to issues relevant to the divorce.
- Sometimes, if there is an immediate need, one of the parties will bring a Motion for Temporary Orders. This type of motion often involves a request that the court set a child support amount, alimony, health insurance and custodial arrangements pending a final hearing. If the parties are not able to resolve these issues on their own, the matter will be heard by a judge and the judge will enter a temporary order pending a final judgment of divorce.
- In Massachusetts, the level of child support is governed by the Massachusetts Child Support Guidelines. These Guidelines provide a formula for calculating what amount must be paid. The Guidelines do not apply in cases where the couple earns a combine income of greater than $250,000.00 or more. That does not mean that there is no child support in those cases, it just means that the amount of child support is not necessarily dictated by the Guidelines.
- Alimony refers to spousal support. The divorcing couple must always inform the court whether they wish to have alimony or whether they waive it. Alimony is the payment from one spouse to the other spouse for his or her support. It can be ordered in addition to child support depending on the need of the spouse seeking it and the ability of the spouse to pay it.
- Massachusetts is an "equitable distribution" state. That means that whether or not an asset is in an individual name or joint names is irrelevant in the first instance. All of your property, whether joint or individual, is considered marital property. If the parties cannot decide, the court will decide whether any assets should not be considered marital property and in what percentage to allocate the assets. The judge considers a series of factors such as age, health, vocational skills, income, contribution during the marriage, potential for future assets, etc. to determine whether the assets should be divided equally or in some other manner. In a long-term marriage where the assets have been accumulated by the couple over the years of the marriage, it is not uncommon for the court to divide the assets equally.
- If you have children and you are getting divorced, you must take a parent education class. You will not be able to obtain a hearing on your divorce unless you have both taken this class. The class is taken separately and consists of two 2-‡ hour sessions and currently costs $80.00 person. The class covers divorce and children, parenting dos and don'ts, and how to help children cope with divorce. see http://www.mass.gov/courts/courtsandjudges/courts/probateandfamilycourt/standing-order-4-08-parent-education-attendance.pdf for more information.