Divorce 101

In Massachusetts divorce is initiated by the filing of a complaint for divorce either claiming fault or no fault grounds. It is not necessary to show that your spouse has caused the divorce. In fact, most divorces are filed on the grounds of irretrievable breakdown. While many divorces are contested on issues of property, support, custody, etc., few are actually contested on the grounds for the divorce itself. Therefore, minimal testimony is actually be required to establish why you or your spouse is seeking the divorce.

The grounds for the divorce do not necessarily determine how the property will be divided or how much support will be awarded, although under extreme circumstances, fault and wrongful conduct can have an impact on the final outcome. In Massachusetts grounds for divorce include: _______ Also, state law requires that all fault or grounds based divorces, including the "irretrievable breakdown," complete a six-month waiting period from the date of filing the complaint before the parties can complete their divorce. There is also a 90 day waiting period after the judge grants your divorce called the NISI period. For all practical purposes your divorce is completed at the final hearing before the judge and final after the NISI period. You can not remarry until the NISI period has expired.

Alternatively, A married couple can file for an uncontested divorce by filing a Joint Petition for Divorce with the court. An uncontested divorce does not require a six-month waiting period before your divorce can be completed. This option allows individuals who desire to divorce quickly and can agree upon the terms of their divorce to move through the court system without delay. Once you have filed the joint petition for divorce, a financial statement and have reached a written separation agreement you can request a final hearing. The NISI period in an uncontested divorce 120 days.

In Massachusetts you may seek an annulment of your marriage, which effectively nullifies your marriage, as if it never took place. The party seeking an annulment must prove that there was some type fraud involved in the marriage. Although you can file for an annulment pro se, you may benefit from hiring an attorney seek an annulment. Whether your are involved in an uncontested divorce, a high conflict divorce or would like to see if you qualify for an annulment, Attorney Grew can assist you and advocate for your best interests.

Some couples elect to enter into a Prenuptial Agreement, which is a contract each party enters into prior to the marriage. The main purpose of prenuptial agreements is to establish the amount and kinds of existing property each spouse will be entitled to if the marriage ends in divorce. Although most people associate prenuptial agreements with high-income or famous individuals, prenuptial agreements can benefit middle-class couples as well. For example, spouses entering into a second marriage often seek to preserve their individual pre-marital assets such as homes, and savings for their prior children rather than their second spouse and his or her family. Commonly, individuals who own part of a family business utilize a premarital agreement to limit the amount a future divorce will impact the family business. There are many more situations where using a premarital agreement makes sense. Massachusetts law is very specific about how prenuptial agreements are created and enforced. You should consult an attorney for specific information and advice about how prenuptial agreements can benefit you.

Residency requirements: In order to file for divorce in Massachusetts, at least one party must be a Massachusetts resident for a continuous six-month period immediately preceding the filing of a complaint for divorce. For example, if you file for divorce in Massachusetts on June 1, 2007 you must have been a legal resident of Massachusetts since January 1, 2006. A complaint for divorce is typically filed in the county in which the filing party currently resides in or in some cases, where the couple last resided together. You do not have to be living apart to file for divorce. Rules concerning residency and jurisdiction are complicated and often require careful analysis by an attorney.

Over the past decade, married couples are increasingly using professional marital mediators to assist them in negotiating and drafting their separation agreements. Marital mediators are typically attorneys or mental health professionals who have undergone additional training in divorce law and mediation. Mediators do not legally represent a party, nor do the "take sides" in the negotiation. Typically, both spouses and the mediator meet for several sessions to work out the details of the divorce. Mediators often advise that both spouses separately bring the mediated separation agreement or specific questions about their legal rights to their own attorney for legal advice and consultation. Mediation offers an number of advantages over traditional litigation. It is often less expensive, quicker, less adversarial and the parties, themselves, negotiate the final agreement. Mediation is completely voluntarily. Attorney Grew is a certified marital mediator in Massachusetts. If you would like to see if mediation is right for you please contact attorney Grew at (781) 520-1758 to set up a free consultation.

Once you have filled out a complaint for divorce, paid the filing fee and submitted the documents to the probate court, a clerk will send you a domestic relations summons for you to serve to your spouse. A summons and a copy of the complaint for divorce must be served by a constable or sheriff "in hand." The sheriff or constable will then return the original summons to you so that you can file it with the probate court. The summons is the first notice you spouse receives from the court notifying them that a complaint for divorce has been filed. If you have received a summons you may only have 20 days to respond.

Hearing for the first time that your spouse has filed for divorce is upsetting and some men and women resort to violence to punish their spouse. If you have any immediate concerns for your physical safety you should first seek a safe place and contact the police and then contact an attorney or other qualified domestic abuse professional for assistance.

A word about the emotions involved in divorce. Without questions a divorce is a troubling time for the parties, their children and families. Often it involves the breaking apart of a home, changing residence, schools and drastically reducing financial and parental resources. Each person involved experiences divorce differently. Spouses have repeatedly expressed feelings of anger, disappointment shame, hopelessness and fear around the time of a divorce. Most divorces are initiated by one party who may have been thinking about and planning the separation for years. This disparity of where each spouse / child / family member is in the divorce process coupled with the differing backgrounds each of us has creates a very complex and highly emotional process. This is not to say that the parties do not experience a great sense of relief and excitement for the future. For many, reaching the decision to divorce is the most difficult part. Much of a divorce attorneys focus is not only assisting his or her client understand the legal issues and consequences; but, assisting the client through the various steps of the divorce process. Often, spouses seek individual and sometimes couples therapy to assist them through the divorce process.

Once a divorce has been filed and the summons delivered, an answer, which may contain additional or similar grounds for divorce as stated in the complaint, must be filed by the recipient within twenty days from the service of the original divorce complaint. An answer is generally the method by which the other spouse, and his or her counsel, enters the case. It is very important to consult an attorney as soon as you are served a complaint for divorce, so that you can properly prepare and timely file your answer and counterclaim.

Temporary orders: After delivery of the summons, the parties often move quickly into court to establish temporary court orders, which will be in effect while the divorce is pending or new temporary orders are issued. These temporary orders may include custody and parenting time allocations, child and spousal support and when appropriate, temporary restraining orders to prevent domestic abuse or the disposition of assets. You can never underestimate the impact temporary orders have on the final result. It is vital that you consult with an attorney prior to any hearing for temporary orders. Our office will work closely with you to navigate this important step in your divorce. The decision about if and when to file for divorce and what orders to request is a decision based upon the unique circumstances of your case

Discovery. Very shortly after the divorce commences, the attorneys will engage in a process called "discovery." During this process, all assets, liabilities and income will be identified and valued. This process can be undertaken informally by the attorneys or through what is known as "formal discovery," utilizing document production requests, interrogatories, depositions and subpoenas. This process can be very time consuming and complex. Every party in a divorce is required to completely fill out a financial statement disclosing your assets, income and liabilities. Your attorney is required to sign that the financial statement accurate and correct. There are grave consequences for either a party or an attorney misrepresenting information on a financial statement. The client should understand that most probate court judges are experts at interoperating financial statements and you can expect the opposing side to highlight any inaccuracies in your financial statement.

Division of Property: Massachusetts is an equitable distribution state, meaning that the law requires that all of the property be divided in a fair and equitable fashion. Equitable does not necessarily mean equal, although the law may presumes an equal division as a starting point. Generally speaking, property brought into the marriage by either party is that party's separate, non-marital property. Also, property received during the marriage by one party as a gift or inheritance will likely considered non-marital property. All property acquired during the marriage with marital funds or through marital effort will likely be deemed to be marital property, regardless of how it is titled. Property owned by one party prior to the marriage but which has increased in value may be viewed in part as a marital asset. What is marital property and what is non-marital property is often the subject of dispute in a divorce and often requires detailed and complicated tracing efforts. We have substantial resources and experience in the tracing of assets for divorce purposes.

Given that the lions share of a couples income goes towards the purchase, improvement and maintenance of the marital home, it is no wonder that the marital home is often the most contested issue in a divorce. Commonly, parties view who "won" and who "lost" the divorce by who receives the most benefit, use or proceeds from the marital home. However, it is not that simple, attorneys and the probate courts have devised countless ways to utilize and allocate the marital home.

Many property issues revolve around the value of the property itself, particularly if there is a professional practice or business involved. Expert witnesses may be required to assist in the valuation process. Our office knows how to handle complex business valuations and we work with highly trained experts in this field to protect your interest.

Spousal Support & Alimony: Massachusetts has a spousal support statute, setting forth several factors that the court must consider in determining the amount and duration of spousal support. Unlike child support, there are no guidelines or formulas as to how the court should award spousal support. Spousal support cases are by nature very individual and often unpredictable. In a long marriage or one in which one spouse sacrificed a career to stay home with children, spousal support might be the most difficult issue to resolve. We have been very successful at negotiating and litigating complicated spousal support issues and in working with vocational experts and economists to assist in the presentation of the case. Pensions, retirement plans and savings plans which one or both parties contributed to during the marriage can be divided at the time of divorce. Also, the court will also consider how best to maintain health insurance for a divorce spouse.

The Allocation of Parental Rights and Responsibilities. In Massachusetts, the law provides for both shared parenting and sole custody. Parental rights deals with the concepts of shared custody, physical custody, legal custody, visitation and parenting plans. More often than not, one parent is designated as the physical custodial parent and both parents act equally as the legal custodian of the child or children. There is no legal presumption in favor of shared parenting. It is simply an option that the court has, and is often a preferred resolution when the parents can demonstrate a history of, and willingness to continue sharing parenting responsibilities. Shared parenting is not feasible or appropriate in many cases. While we try very hard to resolve parenting issues outside of court, our office is very well versed in handling high-conflict custody cases.

Child Support. All states have created child support guidelines, formulas to determine how much the payor (person who pays child support) contributes to the Payee (person who receives child support). Massachusetts factors in the child's age, income of both parties, cost of child care and the cost of health insurance. Massachusetts law requires parents to support their children until the child turns 18 or until they graduate from high school or emancipates. More often, a parents obligation to support their children continues until the child is 21, if the child remains dependant on the custodial parent. In the event that your children are enrolled in, and attend college, the obligation to support continues until the age of 23. The support obligation can continue well into adulthood for a disabled child.

Cases with combined family income in excess of $100,000.00 must be decided on a case by case basis. Careful preparation and presentation of evidence is necessary to ensure a fair and reasonable child support award. Attorney Grew frequently appears in child support matters before the probate court and the Department of Revenue.

Questions concerning health insurance are routinely addressed when the parties first establish the initial child support order. Most Judges will require at least one parent to obtain health insurance for their children. The cost of insurance is most often shared equally and additional health related costs such as co-pays and uncovered care are allocated to one or both of the parties.

In addition to health insurance, life insurance is an important issue in the dissolution of a marriage. Courts may view life insurance as a type of security for the payment of future child support, accordingly, the court may order the payor of child support or both parents to obtain and maintain a certain level of life insurance and name the minor child(ren) as the beneficial.

Increasingly parents are forced to litigate issues concerning paying for the cost of college. Many divorce agreements include specific instructions about who will pay and what amount a parent shall pay for their children's cost of college. Divorce agreements may not specify whether a parent is responsible for paying for college. Economic circumstances may change between the time of the divorce and college where one parent may be in a position to pay or not pay for college. Paying for college has become a highly contested issued for parents and their attorneys.

Post Litigation: Most divorce trials and judgments do not require either party to judicially appeal the court's ruling. The decision to appeal a final judgment is complicated and expensive process. It is prudent to seek a second option or consult with an accountant before finalizing your divorce agreement. Attorney Grew can examine your proposed agreement and the facts surrounding your case and discuss how the proposed agreement affects your rights and your spouses' responsibilities.

Enforcement & Contempt: Even when a spouse has a judgment in hand it does not necessarily make the other spouse follow their agreement or court order. Frequently, spouses must hire an attorney to enforce their agreement or bring the other spouse in contempt of court. In Massachusetts, a partly

For some couples with young children, a divorce has long-term effects lasting 20+ years. It it a given that your children's needs as well as one or both parents economic conditions will change and require one or both parties to request a change in their original agreement. Typically, one party will request more child support, spousal support or a decrease in support. Parties may seek to change the original custodial or visitation arrangement. The probate court is busy with parties seeking some type of modification of their agreement. In Massachusetts, judges rely upon a change in circumstances standard to determine if the court has the authority to modify the original agreement. Parties seeking to change their original agreement file a Complaint for Modification to change one or more terms of the parties original agreement. Attorney Grew can provide you with a cost effective solution to modifying your original agreement.

common examples of a significant level of change to request the court to modify an original agreement. (1) the person paying or receiving undergoes a 20% or more change in their income; (2) a minor child changes their residence and financial dependency from one parent to another; or, (3) a party remarries causing spousal support to end. These are just a few examples of the types of changes that occur requiring the parties to modify the original agreement. You should contact attorney Grew if you believe there has been a change in circumstances sufficient to have the court modify your original agreement.

The cost of divorce is influenced by some very basic factors such as: (1) the parties ability to reach agreements about custody, support, insurance and martial assets; (2) the number of court appearances the parties require to move their case towards a settlement or trial; (3) the amount and type of assets the parties own; (4) the presence of conflict concerning parenting, child custody and visitation; (5) the need of expert witnesses, forensic experts and professional services; and, (6) attorney fees and the amount of time the attorney works on the your case. In no way is the above a complete list of the factors influencing the cost a divorce.

We hope this information has been helpful, please feel free to contact us at (781) 520-1758