Frequently Asked Questions About Divorce in Massachusetts
Navigating the divorce process in Massachusetts can be overwhelming and confusing. At Weberg Law, we understand that you likely have many questions about the legal process, your rights, and what to expect. This comprehensive FAQ addresses the most common questions our clients ask about divorce in Massachusetts.
Understanding the Basics of Divorce in Massachusetts
What are the grounds for divorce in Massachusetts?
Massachusetts recognizes both fault and no-fault grounds for divorce. The most commonly used ground is “irretrievable breakdown of the marriage,” which is a no-fault option. This can be filed as either contested (Section 1B) or uncontested (Section 1A). Fault grounds include cruel and abusive treatment, desertion, adultery, impotency, habitual intoxication, non-support, and imprisonment. Most attorneys recommend filing under irretrievable breakdown as it generally simplifies the process and reduces conflict.
What’s the difference between contested and uncontested divorce?
An uncontested divorce (filed under Section 1A) means both spouses agree on all issues including property division, child custody, support, and alimony. Both parties file a joint petition along with a complete separation agreement. A contested divorce occurs when spouses cannot agree on one or more issues. Even if filing under the no-fault “irretrievable breakdown” ground (Section 1B), the process becomes more complex and typically takes longer to resolve when contested.
How long does it take to get divorced in Massachusetts?
The timeline varies depending on whether your divorce is contested or uncontested. Contested divorces can take several months to several years depending on the parties’ abilities to settle and whether a trial is required. After the divorce judgment nisi enters there are the following waiting periods before it is final.
For an uncontested divorce, there is a 30-day waiting period after the hearing before a judgment of divorce nisi is entered, followed by a 90-day nisi period before the divorce becomes final—totaling 120 days. For contested divorces, the process takes at least 90 days after the judgment of divorce nisi is entered, but the entire process often takes much longer, sometimes a year or more, depending on the complexity of issues and court schedules.
What is a divorce nisi?
A divorce nisi is a provisional judgment that becomes final after a waiting period. In Massachusetts, this waiting period is 90 days. During this time, the parties remain legally married and cannot remarry. The purpose of this waiting period is to allow for possible reconciliation. After the nisi period expires, the divorce becomes absolute automatically without further court action.
Financial Considerations in Divorce
How is property divided in a Massachusetts divorce?
Massachusetts follows the principle of “equitable distribution,” which means property is divided fairly but not necessarily equally. The court considers numerous factors outlined in G.L. c. 208, § 34, including the length of the marriage, conduct of the parties, age, health, occupation, sources of income, vocational skills, employability, estate, liabilities, needs of each spouse, and contributions to the acquisition of marital property. Both marital and separate property may be subject to division.
What’s the difference between child support and alimony?
Child support is payment specifically intended for the care and maintenance of children, calculated primarily using the Massachusetts Child Support Guidelines. Alimony is payment from one spouse to another for the recipient’s personal support and maintenance. While child support focuses on the children’s needs, alimony addresses the financial needs of a former spouse. These payments have different tax implications and are governed by different legal standards.
How is alimony determined in Massachusetts?
Alimony in Massachusetts is governed by the Alimony Reform Act, which provides guidelines for determining the type, amount, and duration of alimony. The court considers factors such as the length of the marriage, age and health of both parties, income and employment opportunities, marital lifestyle, and contributions to the marriage. There are four types of alimony: general term, rehabilitative, reimbursement, and transitional. The duration of alimony payments is typically tied to the length of the marriage, with specific durational limits outlined in the statute.
How are child support amounts calculated?
Massachusetts uses Child Support Guidelines to calculate support obligations. These guidelines consider both parents’ incomes, health insurance costs, childcare expenses, and other factors. The court may deviate from these guidelines in certain circumstances, such as when children have extraordinary medical or educational needs. Child support typically continues until a child turns 18, but may extend to 23 if the child is dependent and enrolled in an educational program.
Will I have to pay for my spouse’s attorney fees?
Each party is generally responsible for their own attorney fees, but the court has discretion to order one spouse to pay all or part of the other’s legal fees. This typically occurs when there is a significant disparity in income or financial resources between the parties. The court may also award attorney fees if one party engages in conduct that unnecessarily increases litigation costs.
Child-Related Issues in Divorce
How is child custody determined in Massachusetts?
Massachusetts courts determine custody based on the “best interests of the child” standard. The court considers factors such as the child’s relationship with each parent, the parents’ ability to cooperate, the child’s needs, and each parent’s ability to foster the child’s relationship with the other parent. There are two types of custody: legal custody (decision-making authority) and physical custody (where the child lives). Both can be either shared or sole.
What is the difference between legal and physical custody?
Legal custody refers to a parent’s right to make major decisions regarding the child’s welfare, including education, medical care, and religious upbringing. Physical custody determines where the child primarily resides. Both types of custody can be shared jointly between parents or granted solely to one parent. Joint legal custody is common even when physical custody is primarily with one parent.
Are mothers favored in custody decisions?
Massachusetts law does not favor either parent based on gender. The court’s primary consideration is the best interests of the child. All legal parents have equal rights in custody determinations. The court evaluates each parent’s relationship with the child, parenting abilities, and willingness to support the child’s relationship with the other parent, regardless of gender.
Can my child decide which parent to live with?
While the court may consider a child’s preference, particularly as they get older, it is not the determining factor. The judge weighs the child’s preference along with other factors related to their best interests. Massachusetts does not have a specific age at which a child’s preference becomes controlling. Instead, the court considers the maturity of the child and the reasoning behind their preference.
Are parents required to attend parenting classes during divorce?
Yes, if you have minor children, both parents are required to complete a mandatory parenting program approved by the Probate and Family Court. This educational program helps parents understand the impact of divorce on children and provides strategies for effective co-parenting. The course must be completed before the divorce can be finalized, and certificates of completion must be filed with the court.
The Divorce Process
Do I need to be separated before filing for divorce?
Massachusetts does not require a period of separation before filing for divorce. You can file for divorce while still living together. However, if you file under the ground of desertion, you would need to show that your spouse left without justification and without intent to return for at least one year.
What documents do I need to file for divorce?
For a divorce filing, you’ll need to prepare and submit several documents, including a Complaint for Divorce or Joint Petition for Divorce (depending on whether it’s contested or uncontested), a certified copy of your marriage certificate, financial statements, and if you have minor children, an Affidavit Disclosing Care or Custody Proceedings and a Child Support Guidelines Worksheet. Additional documents may be required depending on your specific circumstances.
What happens at the initial divorce hearing?
The initial hearing varies depending on whether your divorce is contested or uncontested. For an uncontested divorce, the hearing is relatively brief, with the judge reviewing your separation agreement and asking questions to ensure both parties understand and voluntarily agree to its terms. For contested divorces, the initial hearing often focuses on temporary orders regarding issues like support, custody, and use of the marital home while the divorce is pending.
Can I get a divorce if my spouse doesn’t want one?
Yes. Massachusetts allows for no-fault divorce based on irretrievable breakdown of the marriage, which can be filed by one spouse even if the other objects. While your spouse cannot prevent the divorce from eventually being granted, they can make the process more complicated and time-consuming by contesting issues such as property division, custody, and support.
What happens if my spouse doesn’t respond to the divorce complaint?
If your spouse fails to file an answer or otherwise respond to your divorce complaint within the required time frame (typically 20 days after service), you may request a default judgment. This allows the court to proceed with the divorce and potentially grant the relief you requested in your complaint. However, even in default cases, the court will still review issues like property division, custody, and support to ensure they are fair and appropriate.
Special Circumstances
How does domestic violence affect a divorce case?
Domestic violence can significantly impact divorce proceedings. The court takes allegations of abuse seriously and may issue protective orders to ensure safety. Evidence of abuse can influence custody determinations, as the court considers the safety and well-being of children paramount. Massachusetts law specifically addresses domestic violence in custody decisions, requiring the court to consider evidence of abuse when determining what arrangement is in the child’s best interest.
Can I modify a divorce judgment after it is final?
Certain aspects of a divorce judgment can be modified if there has been a material and substantial change in circumstances since the original judgment. Issues commonly subject to modification include child custody, parenting time, child support, and in some cases, alimony. Property division, however, is typically final and not subject to modification unless there was fraud or serious misconduct in the original proceedings.
What if my spouse is hiding assets?
Hiding assets during divorce is illegal and can result in serious consequences. If you suspect your spouse is concealing assets, your attorney can use discovery tools such as interrogatories, requests for production of documents, depositions, and subpoenas to uncover hidden assets. If the court finds that a spouse intentionally concealed assets, it may award a larger portion of the marital estate to the other spouse or impose other sanctions.
How are retirement accounts and pensions divided in divorce?
Retirement accounts and pensions accumulated during the marriage are typically considered marital property subject to division. The division often requires a specialized court order called a Qualified Domestic Relations Order (QDRO) to divide these assets without triggering tax penalties. The specific division depends on various factors, including the length of the marriage and each spouse’s financial circumstances and contributions.
What alternatives to litigation exist for resolving a divorce?
Several alternatives to traditional litigation exist, including mediation, collaborative divorce, and arbitration. Mediation involves working with a neutral third party to reach agreements on divorce-related issues. Collaborative divorce involves both spouses and their attorneys committing to resolve issues without court intervention. These alternative approaches often result in less conflict, lower costs, and more personalized solutions than litigation. Weberg Law offers flat fee mediation services that many clients find beneficial.
Seeking Legal Assistance
Do I need an attorney for my divorce?
While it’s possible to represent yourself in a divorce, having an attorney is highly recommended, especially if your case involves children, significant assets, or complex issues. An experienced family law attorney can help you understand your rights, navigate the legal process, and advocate for your interests. Even in seemingly straightforward cases, legal nuances can significantly impact your financial future and relationship with your children.
At Weberg Law, we understand that divorce is not just a legal process but a significant life transition. Our experienced attorneys are committed to guiding you through this challenging time with compassion and expertise. For personalized advice regarding your specific situation, please contact our office to schedule a consultation.