What You Must Know About Divorce in Massachusetts: A Guide

A Very Brief History of Divorce

The first US colonial divorce was granted in Massachusetts in 1639. During the colonial era, marriage was predominantly perceived as a civil contract, which significantly influenced attitudes toward divorce. In the New England colonies, especially Massachusetts, divorce laws were comparatively more lenient than in the Southern colonies, where divorce was seldom granted. The cultural and religious context, particularly the Puritanical beliefs in the North, shaped the legal frameworks surrounding matrimony. Between 1692 and 1786, Massachusetts granted 143 divorces, demonstrating a more progressive approach toward addressing marital issues, unlike the stricter norms in England and Wales, which only saw 90 divorces in the same period.

Key milestones in the evolution of divorce law in Massachusetts include the establishment of the Supreme Judicial Court’s jurisdiction over divorce cases in 1782 and the introduction of no-fault divorce in the late 20th century. The Married Women’s Property Act of 1848 was also significant, granting women property rights that made divorce a more viable option for those seeking independence. These legislative changes reflect the shifting societal attitudes toward marriage and the rights of individuals within it.

Nationally, divorce rates have fluctuated over the decades, with significant increases noted in the mid-20th century, particularly after the introduction of no-fault divorce laws. By the late 20th century, approximately 40% to 50% of marriages were predicted to end in divorce, with variations based on factors such as education, income, and age at marriage. Recent trends indicate a decline in divorce rates, particularly among younger couples, attributed to changing societal values and economic factors.

Grounds for Divorce

Fault-Based Grounds

Massachusetts law allows courts to adjudge divorce where the complaining party can prove that the other is at fault for the breakdown of the marriage. Fault-based grounds include gross and confirmed habits of intoxication, desertion, adultery, cruel and abusive treatment, impotence, serving a prison sentence of 5 or more years, and nonsupport.

In Massachusetts people rarely seek divorces based on fault, even if one of the above conditions exists. That is because proving fault is usually more expensive and difficult than obtaining a divorce based on “no fault” and it rarely makes a difference in the result. For example, if one parent has a severe alcohol or drug dependency that impedes their ability to parent, a judge will likely award custody to the healthy parent even in a no-fault divorce. So, the cost and challenge of proving fault would not be required. 

No-Fault Grounds

No-fault divorce has become a prominent option in Massachusetts, allowing couples to divorce without assigning blame. This process can reduce conflict and facilitate a more amicable separation, which is particularly beneficial when children are involved. 

Even when a party might have fault-based grounds for filing for divorce, no-fault is usually the better option because it reduces the burden of proof on the plaintiff. Rather than having to prove abuse or abandonment, which may be challenging, you simply have to prove that there has been an irretrievable breakdown of the marriage. 

Types of Divorce

Contested

In Massachusetts, the divorce process can be categorized into two primary types: contested and uncontested divorce. A contested divorce occurs when one spouse disagrees with the terms proposed by the other, leading to potential litigation and court hearings. 

Uncontested

On the other hand, an uncontested divorce is when both spouses agree on all terms, including child support and the division of marital property, allowing for an expedited resolution.

The Procedure

Filing for Divorce

To initiate a no-fault divorce in Massachusetts, one spouse must file a complaint for divorce with the probate and family court. This filing includes a slate of required forms, a certified copy of the marriage certificate, and a request for relief. Couples may also choose to engage in divorce mediation to resolve any outstanding issues amicably before proceeding with the court process.

Discovery

After one person files for divorce and serves their spouse with the summons, the parties begin the exchange of certain documents and information. This period of time during which the parties exchange information is known as “discovery.” In Massachusetts, Supplemental Rules of Domestic Relations Procedure 401 and 410 govern the mandatory exchange of financial information including bank statements, loan applications, tax returns, pay stubs and W2s, and health insurance information. Even though the rules require the parties to turn over certain information, each side can make specific requests of the other for documents not included in the mandatory document exchange. Commonly requested documents include credit card statements, credit reports, business records, and records of gifts and expenditures over a certain value. This is called a request for production of documents. Other discovery tools include interrogatories, subpoenas, requests for admissions, and depositions. 

Going to Court

Going to court is an inevitable part of the Massachusetts divorce process. While other states allow parties to be divorced without a court appearance, Massachusetts still requires a colloquy on the record in each divorce to ensure that the legal elements supporting a divorce exist and that the parties have freely and voluntarily entered into their separation agreement. At a final divorce hearing, the judge will ask each party if they have fully disclosed their finances to the other side and whether they are satisfied with the financial information they received from the other party. It is imperative that the court is able to find each divorce agreement free of duress or coercion. The judge will also ask whether both sides agree that the marriage is irretrievably broken. This, at times, can be an emotional question to answer. It is helpful to remember that courts cannot take action without meeting certain criteria (findings of fact) that authorize them to take such action. In the case of divorce, a judge has to find grounds for the divorce – usually that the marriage is irretrievably broken. 

In many cases, the final hearing will not be your only court appearance. It is common to attend court early on in a case for “temporary orders.” Temporary orders refers to orders of the court that give the parties rules for living while the divorce is pending. These can span from temporary orders on use and occupancy of the marital home, child custody and support, use of certain accounts or income streams, and professional intervention such as required drug and alcohol testing or the use of a family therapist. These hearings can be highly emotional for the parties because so much is on the line and it is not possible to predict the outcome. If the parties have lawyers, the lawyers should be working together well before the hearing date to try to come to agreements on most if not all of the issues. If the parties do not have lawyers, some courts will send them to probation – which serves as a mediator – to try to work out an agreement. If there is no agreement on some or all of the issues, both sides will present arguments to the judge who will issue orders thereafter. 

Issues Decided in a Divorce

Child Custody

Child custody refers to the legal and practical relationship between a parent and their child, encompassing various rights and responsibilities. The two primary types of custody include legal custody, which involves the authority to make significant decisions regarding the child’s welfare, and physical custody, which pertains to where the child lives and the day-to-day care they receive. In Massachusetts, custody arrangements can be categorized as sole custody, where one parent holds all rights, or joint custody, where both parents share responsibilities. The best interest of the child is the cornerstone of any custody determination. Massachusetts law recognizes the importance of both legal and physical custody, providing a framework that guides custody arrangements based on the best interest of the child. In situations involving married parents, there is a presumption of shared legal and physical custody unless proven otherwise. 

When determining custody arrangements in Massachusetts, courts consider a variety of factors to assess the best interests of the child. Critical elements include the child’s age, the emotional ties between the child and each parent, and the capacity of each parent to provide a stable and nurturing environment. The history of abuse or neglect is also a crucial consideration. Furthermore, the court evaluates the ability of parents to communicate and cooperate in making decisions regarding the child’s welfare. The primary goal is to ensure that the custody arrangement effectively serves the child’s emotional, physical, and psychological needs, ultimately fostering a supportive environment.

Child Support

Child support laws in Massachusetts are designed to ensure that children’s needs are met following a divorce or separation. The Massachusetts child support guidelines provide a framework for calculating the amount of child support that one spouse must pay to the other. These guidelines take into account various factors, including the gross income of both parents, the number of children, health insurance, and child care costs. Adjustments are also be made based on whether the parents have 50/50 parenting schedule or if one parent has the children more than 2/3 of the time. Understanding these factors helps parents navigate the complexities of child support and promote the best interests of their children. If you would like to calculate child support in your own case, here is a calculator.

Alimony

In Massachusetts, alimony is characterized by payments made from one former spouse to another to provide financial assistance post-divorce. The law defines alimony under the Alimony Reform Act, focusing on the recipient spouse’s needs and the payor’s ability to pay. Massachusetts recognizes several types of alimony, each designed to meet different needs. These include rehabilitative alimony, intended to support a spouse while they gain skills for employment, and transitional alimony, which assists in adjusting to new living arrangements. The duration of alimony payments can vary significantly based on the type of alimony awarded and the circumstances of the divorce. Additionally, Massachusetts law allows for the modification of alimony orders if there is a material change in circumstances, such as changes in income or employment status for the payor or an extended disability for the recipient.

Division of Assets and Debts

The division of assets and debts during a divorce in Massachusetts can significantly impact both parties’ financial futures. Massachusetts follows the principle of equitable distribution, meaning that marital property will be divided fairly but not necessarily equally. Factors such as the length of the marriage, each spouse’s contribution, and future financial needs are considered, making the role of a divorce attorney crucial in navigating these complexities. If the parties cannot agree about how to divide their assets and debts, the case will be scheduled for trial, after which the judge will decide. 

Health and Life Insurance

Another critical consideration in a divorce is insurance. For example, if the parties have been on one spouse’s employer-sponsored health insurance plan, they will have to discover whether that coverage is available for a former spouse and, if so, the parties will have to decide whether to continue that coverage after divorce. If there are minor children, the health insurance for the kids also needs to be decided. Oftentimes where there is an order of child support or alimony, or if the children are young, the parties will agree to carry a certain amount of term life insurance naming the other spouse as the beneficiary for the benefit of the children. The parties will have to decide whether and how much insurance each should carry. 

Tax Considerations

The tax consequences of divorce are many and anyone getting divorced should consult with a trusted accountant or other tax professional before signing a separation agreement. First, transfers of property as directed by a divorce judgment are nontaxable transfers. So, if one party buys the other out of their interest in the marital home, this is not a taxable transaction. However, taxes become a critical consideration when parties are determining complex asset division and alimony. Taxes also come into play when there are children. The parties will need to agree on which parent will claim the minor child or children for tax purposes and in which years. 

Negotiation and Settlement Tools

Attorneys

Engaging a skilled divorce attorney can help illuminate the court and litigation process and guide individuals through the complexities of family law. Experienced attorneys will explain your rights and responsibilities and work hard to negotiate the best possible outcome. Experienced divorce lawyers know not only the rules and law, but also the customs of each county courthouse. In addition to having a knowledgeable guide, a lawyer also shields you from direct contact from the other side. This “buffer” can be invaluable as you work through the pain toward your new life. 

Mediation

Divorce can be a painful experience, and navigating the complexities of the divorce process often requires expert guidance. In Massachusetts, divorce mediation offers a constructive alternative to traditional divorce litigation. Mediation is a voluntary process in which a neutral third party, known as a divorce mediator, assists couples in reaching an agreement regarding their divorce. Unlike a court proceeding, where a judge makes binding decisions, mediation allows both parties to engage in open communication and collaborate to resolve issues such as asset division, child support, and other critical matters.

There are numerous benefits of divorce mediation compared to traditional divorce litigation. For one, mediation allows couples to maintain control over the outcome of their divorce, resulting in a more personalized divorce agreement. Additionally, mediation is often more cost-effective and time-efficient, as it can significantly reduce legal fees and expedite the divorce process. Furthermore, mediation fosters a sense of cooperation, which can be especially beneficial when children are involved, as it helps parents develop a separation agreement that prioritizes their children’s well-being. Overall, choosing divorce mediation in Massachusetts can lead to a more amicable resolution and a smoother transition into the next chapter of life.

Conciliation

Conciliation is another option for resolving a divorce, and is often done in conjunction with having lawyers. A neutral party called a conciliator helps the parties develop options for resolution, relying on their unique experience in the field. Conciliation operates almost identically to mediation but employs a more specialized and authoritative neutral. Often this is a retired judge or a highly experienced divorce attorney. Conciliation is voluntary and non-binding. Some Massachusetts counties have attorneys serve as volunteer conciliators but typically the parties will share the cost of conciliation, as in mediation. 

Trial

The Divorce Trial

See here for an article about Divorce trials.

After Divorce

Divorce Judgment and Nisi Period

After settlement or trial, the court will issue a Judgment of Divorce Nisi. The judgment becomes final 90 days after that in a contested divorce, or 120 days after that in an uncontested divorce. More about the nisi period here. 

Compliance With the Judgment

Post-divorce, it is crucial for individuals to understand their rights and obligations as outlined in the divorce agreement. This includes responsibilities related to child support payments, parenting rights, and the division of assets. A clear understanding of what is required can prevent modification or contempt filings and ensure compliance with Massachusetts law, leading to a smoother transition into post-divorce life.

After the divorce has occurred, individuals should consider several next steps to ensure a fresh start. This may involve reassessing financial goals, updating estate plans, or even seeking counseling to navigate emotional changes. A family law attorney can also provide guidance on any legal obligations that persist post-divorce, helping to ensure that all matters are appropriately addressed in accordance with Massachusetts family law.

Divorce and Wellbeing 

Divorce can take a considerable toll on the parties’ mental health. It is generally recognized that divorce and separation from one’s mate are the second and third biggest stressors in life.  You might find yourself despairing over the reason for divorce, whether you will ever reach a fair resolution, overwhelm at the volume of divorce paperwork, panic about your financial future, and fear about navigating the process. It is more important than ever that you rely on your support system every step of the way. It might be a counselor, another friend who has gone through a divorce, close family, or a spiritual community. Do not go it alone. With that suggestion, also choose your inner circle wisely. Stick close to those who help alleviate the pain, not exacerbate it.