Massachusetts Divorce Law

The Civil Divorce^™

The sensible approach to a new life

• Massachusetts divorce, separation, or annulment?

• Massachusetts legal separation

• Massachusetts annulment

• Grounds for Massachusetts divorce

• Automatic financial restraining order

• Temporary court orders

• Parenting class

• Alimony and child support

• Child custody

• Dividing assets and debts

• The family home

• Changing your name

• Reconciliation?

• Moving away with your children

• Counseling

• Nine Suggestions to Help You Stay Sane

Massachusetts divorce, separation, or annulment?

The first thing to decide, of course, is whether you want to begin divorce  proceedings or take some different course of action. When we meet, you and I will discuss all your options.

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Massachusetts legal separation

It may surprise you that under Massachusetts law there’s really no such thing as a “legal separation." If you’re living apart, you’re separated.

But the law does provide a way for one spouse to get court orders for support, to determine custody, and to ensure that one spouse doesn’t interfere with the other’s freedom. It’s called a “Complaint for Separate Support.”

There are some drawbacks to proceeding under the separate support law. The court’s power        is more restricted than in a divorce. For instance, it can’t order property to be divided.             Also, if it later turns into a divorce, a new filing fee is required.

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Massachusetts annulment

An annulment is a legal judgment that a marriage never existed. One person is claiming         that the other was incapable of marrying (too young, for example) or committed some           type of fraud, like marrying solely for immigration purposes.

No-fault divorce, which doesn’t require proof of any bad conduct, has made annulments rare.

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Grounds for Massachusetts divorce

Two types of Massachusetts No-Fault Divorce

The most common Massachusetts divorce is for “irretrievable breakdown of the marriage," commonly called "no-fault."

1.  The first type of no-fault divorce is when only one person files alleging that the marriage    has broken down. The other side can't claim that the marriage has NOT broken down; to be divorced, it's sufficient that one side states that there has been a breakdown. The other side    can’t do anything to stop the divorce.

This type of no-fault divorce requires the divorce to be on file for 6 months before the court     will grant a divorce. But if you do reach an agreement, you can get a court date without having to wait the 6 months.

2.  A second type is a joint no-fault divorce. You and your spouse submit a signed divorce agreement and all the other necessary papers with the court. The court sets a date for you          to appear before a judge, usually within a few weeks. After the judge allows your divorce,            it becomes legally final in 120 days.

In a joint petition, it's often possible to "walk" your divorce into court and have         it allowed that day. You arrive at court by 8 a.m., file the papers, and the clerk directs you     to a courtroom where a judge grants your divorce.

Massachusetts “fault” divorce

Massachusetts law also allows a divorce based on “fault,” including cruel and abusive treatment, adultery, desertion, and some others that are infrequently used.

Contrary to what you may think, filing a fault divorce doesn’t give you an advantage.              The divorce process is not about what went wrong in the marriage or who's responsible for     the  break-up. Generally, divorce is more about economics than anything else. Usually misconduct becomes relevant only if it has had a serious impact on family finances.

If a client wants to file a divorce based on a partner’s “fault,” I usually try to discourage it.          A quick and fair settlement becomes more difficult if you begin by stating in a public document that your partner is a rat.

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Automatic Financial Restraining Order

Once a divorce is filed, you both are under an automatic court order prohibiting you from spending or hiding marital assets, and changing life and health insurance.

Each side must give the other a complete record of their finances, including tax returns, pay stubs, or statements for self-employment. If these documents are not sufficient to determine    the other side’s financial status, the attorneys conduct “discovery,” which is the procedure for getting information from the other side. Discovery can require answers to written questions or oral testimony under oath.

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Temporary Court Orders

At the outset of a divorce, it may be necessary to obtain temporary court orders for custody,  child support, or alimony. The orders typically remain in effect until your divorce is final.

If you don’t reach an agreement, your divorce proceeds to trial before a judge (no jury).        Most divorces settle before trial—for good reason. Aside from being stressful and expensive,          a divorce trial is risky. The law gives a divorce judge great discretion, making the outcome of       a trial unpredictable.

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Parenting Class

Massachusetts law requires parents of minor children to complete a parenting class before getting divorced. The class is a total of five hours and is held on two days. The cost is $80.

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Alimony and Child Support

Massachusetts has mandatory child-support guidelines that take into account the parents’ income, the number and ages of children, and the costs for day care and health insurance. 

Child support may end when the child turns 18, although the law may require support after that. For example, if a child goes to school after high school, child support can continue until the child earns an undergraduate degree or turns 23, whichever comes first.

Regarding alimony, much depends on the length of the marriage. In a short-term marriage (about five years or less), alimony is rare. In a longer marriage, if one spouse has been a homemaker or earns substantially less than the other, he or she may be entitled to alimony   until remarriage or death.

For tax purposes, alimony is deductible for the paying spouse and taxable to the receiving spouse. Child support is non-deductible for the paying spouse and non-taxable to the receiving spouse.

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Child Custody

Because parents have equal rights to their children, “joint legal custody” is the preferred arrangement. Joint legal custody doesn't mean that children spend half their time with each parent. It simply means that the parents must consult each other about major issues involving the children.

In most divorces, a child lives mainly with one parent, with the other parent having time on weekends, holidays, and for additional time during summer. But any plan that’s workable and   is good for your children can be arranged.

Custody battles bring out the worst in everyone. Every alternative, including mediation and   joint counseling, should be explored first. Parents, not a judge, should decide what’s best for   their children.

Child-related arrangements are never permanent. They can be changed based on new circumstances and the “best interests of the child.”

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Dividing Assets and Debts: the “Equitable Division” Law

Divorce law views marriage as an economic partnership, so the way to begin discussing how assets and debts should be divided is 50/50.

If two people can’t agree on how to divide property or debt, the factors listed in the Massachusetts “equitable division” law come into play:

• the length of the marriage

• the conduct of the parties during the marriage

• the age, health, station, and occupation of each

• the incomes, vocational skills, and employability of each

• the estate, liabilities, and needs of each

• the opportunity for future assets and income

• the present and future needs of the children

• the contribution as a homemaker.

Important: In Massachusetts, all assets are marital assets. It doesn't matter how or when    they were acquired or whose name they're in. Retirement benefits, business interests, the antique chair from Aunt Helen—they’re all marital assets.

The law doesn't require an equal division, only an "equitable" division. As you can see, the law give the judge broad discretion, which makes a divorce trial unpredictable and risky.

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The Family Home

What happens to the house? If there are no children, the house is often sold and the proceeds divided. If there are children, there’s really no perfect solution.

Many parents want their children to stay in familiar surrounding. But refinancing to buy the other out is sometimes impossible, and selling the house may not give either parent enough money to buy another one while keeping monthly costs reasonable.

A common solution is for one parent to remain in the house for a set amount of time or until   the youngest child is "emancipated," which usually means turning 18 or finishing college.        The property is then sold and the proceeds divided.

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Changing your name

If you’d like to resume your former name, you can get an official court record of your name change through the divorce itself, at no extra charge. If you decide to change your name later and you want a court document with your new name, you’ll have to file new papers and pay      a filing fee of $165.

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Reconciliation?

If you and your spouse reconcile and want the divorce dismissed, I’ll file the appropriate court motion. If you decide later to file for divorce again, you’ll have to pay a new filing fee.

If you’re not completely sure where you're going, I can often slow things down to give you the time you need to decide.

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Moving away with the children

Massachusetts law prevents a parent from moving out of state with a minor child who is “under suitable age to signify his consent” without the other parent's approval or the court's permission. The deciding factor is whether there's a “real advantage” to the child.

As you can see, the law is vague. The best that anyone can tell you is that without the other parent’s approval, a parent must have a good reason to move any distance (even within state)    if it disrupts the relationship that the child has with the other parent.

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Counseling

Finally, a word about counseling. Even if you’ve never seen a counselor, please consider it. Divorce brings anxiety and worry, but you can do something about it. Most insurers allow some counseling visits. I’d be happy to recommend some  names to you.

If you can’t see a counselor, get the book Your Divorce Advisor, by Diana Mercer and Marsha Pruett. It’s a wonderful guide through the legal and emotional mess of divorce.

Counseling can help your children.

How you act and what you say during and after your divorce affects your children.                      A counselor can give you guidance to help limit the damage and speed the healing.                 Also, counseling for your children can help, since they may feel frightened and responsible.

Counseling helps you work with your lawyer.

Counseling can help you see emotional issues for what they are so you can make better legal and financial decisions. Lawyers aren't trained in psychology, just as therapists aren't trained in law.

Counseling can help you rebuild your life. Enough said.

 

Nine Suggestions to Help You Stay Sane

1. Fairness has nothing to do with it.

Your idea of fairness may differ from what a court thinks is fair. Who did what during a marriage is  usually irrelevant. As one judge has stated:

Divorce  is not a vehicle by which one spouse is compensated for giving more or for suffering from the other's failures. Evidence that one spouse was a bad mate, lover, cook, housekeeper, or traveling companion is not relevant. If it were, each spouse would be well advised from the wedding date to prepare for a divorce by keeping score in a diary.

2. This is a divorce--your life is not at stake.

Yes, you're going through a terrible time, but try to keep things in perspective. When your divorce is over, you'll probably be happier for ending an unhappy marriage. Try to realize  that this phase of your life can't be compared to being told that you have a terrible illness.

3. Divorce is serious business, not a holy war.

Divorce is like playing cards: for every move, there are potential risks and rewards.                As hard as it may be, try to put your emotions aside so you can treat your divorce in an objective way. Do not make long-term decisions based on short-term emotions.

4. Watch out for transference.

The stress of divorce creates an emotional setting where raw feelings like anger and fear can surface. Watch out for transferring these feelings to a family member, a friend (or to your lawyer). The best thing you can do is to acknowledge these natural feelings and talk about them, with a therapist if possible. (I can give you referrals.)

5. Life is short. Get on with it.

Don't become obsessed. The people who survive divorce best are happy in other areas of    their lives--work, social activities, and relationships. Think beyond your divorce to the        next chapter of your life.

6. A deal is a deal.

Amid the upheaval of divorce, you may think of new issues or different twists after  something has been decided. This is called "buyer's remorse," and it's normal. Remember   that your spouse is going through the same thing. If either  of you reopens an issue,             the whole settlement can unravel.

7. Take the high road.

If you're feeling wronged, you may have a gut desire for revenge. You can follow your gut,  or you can rise above it. The first way leads to misery and increased legal fees. The second approach recognizes reality: the legal system does not provide revenge. If you must have it, neither the court nor I can provide it.

8. Know the perils of court.

You may think that a divorce trial unfolds like a drama, with a wise judge listening to emotional and bomb-dropping testimony. The reality is different. Court involves long waiting time, busy judges, and procedures aimed more at getting cases resolved than in doing justice. If your case goes to trial, the only guarantee is that it will be exhausting and expensive.

9. The only one who counts is the judge.

If your spouse slings some sarcasm or makes a threat, it's motivated by revenge or anger. It's designed to knock you off stride. Don't get sucked in. The only one who counts is the judge. I can normally give you a good prediction of what a judge may do in a particular instance; you don't need to fall for scare tactics.

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