Massachusetts Divorce Law

Which path is right for you?
Massachusetts legal separation
Massachusetts annulment
Grounds for Massachusetts divorce
No-Fault vs. Uncontested Divorce
Automatic financial restraining order
Temporary court orders
Parenting class
Child support
Alimony
Child custody
Dividing assets and debts
The family home
Resuming your former name
Reconciliation
Moving away with your children
Counseling
5 suggestions to help you stay sane


Which path is right for you?

The first thing to decide is which route to take. I always suggest the simplest approach, provided it’s effective and protects your interests. Maybe you just need some coaching. Or maybe mediation could work for you. 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 a person to get court orders for alimony or child support. 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 $220 filing fee is required.

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Massachusetts Annulment

An annulment is a legal ruling that a marriage never existed. Commonly, one person is claiming that the other committed some type of fraud, like marrying only for immigration purposes. Legal annulments have always been rare. And no-fault divorce, which doesn’t require proof of any bad conduct, has made them even less common.

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Grounds for divorce: “Fault” vs. “No-fault”

Massachusetts law allows a divorce based on “fault,” like cruel and abusive treatment, adultery, desertion, and some others. Contrary to what you may think, alleging fault doesn’t give you any advantage. Divorce law is not about who’s responsible for the break-up. It’s more about economics than anything else. Marital misconduct becomes relevant only if it has had a serious impact on the family finances.

A “no-fault” divorce simply means that there has been an irretrievable breakdown of the marriage. But a no-fault divorce doesn’t always mean that it’s uncontested, since you may still may not have agreed about children, property, or other matters.

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

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Automatic Financial Restraining Order

Once a divorce is filed, you’re both under an automgnatic court order not to spend or hide marital assets, and not to change life or health insurance.

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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.

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Parenting Class

If you have children under 18, the law requires you to complete a parenting class. The class is a total of five hours and is held on two days.  The cost is $80.

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Child Support

Massachusetts has child-support guidelines. They factor in the parents’ income, the number of children, and the costs for day care and health insurance.

Child support may end when the child turns 18, although in certain circumstances, the law requires it to continue after that. For example, if a child continues school after high school, child support may continue until the child earns an undergraduate degree or turns 23, whichever comes first.

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Alimony

In a short-term marriage, alimony is rare. In a longer marriage, if one person has been a homemaker or earns substantially less than the other, he or she may be entitled to alimony.

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. This 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 during the summer. But any plan that’s workable and good for your children can be arranged.

Custody battles bring out the worst in everyone. Every option should be explored first. Parents, not a judge, should decide what’s best for their children.

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

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Dividing Assets & Debts

Because divorce law views marriage as a partnership, you’re free to divide assets and liabilities as you like. But if you can’t agree, the Massachusetts “equitable division” law comes into play. The law considers the following:

  • the length of the marriage
  • the conduct of the parties
  • 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 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 Agnes—they’re all marital assets.

This doesn’t always mean that assets and debts are divided equally. Sometimes there’s a valid reason for one person to get a larger share. One example is a short-term marriage. If one side brought in significant assets, he or she may get a credit for them.

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The Family Home

What happens to the house? If you have children, you may want them to stay in familiar surroundings. But it may not be possible to keep up with all the expenses after a divorce. And selling the house may not give you enough 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. The property is then sold and the proceeds divided.

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Resuming your former name

If you’d like to resume your former name, you can do it through the divorce. If you decide to resume your former name after you’re divorced, you’ll have to file new papers and pay a court fee.

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Reconciliation

If you’re not completely sure where you’re going, I can slow things down to give you time to decide. If you reconcile and want the divorce dismissed, that’s your call. I’ll file the appropriate court motion.

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Moving away with children

Massachusetts law prevents a parent from moving out of state with a minor child without the former spouse’s approval or the court’s permission. The deciding factor is whether there’s a “real advantage” to both the child and the moving parent.

As you can see, the law is vague. The best that I can tell you is that you must have a good reason to move any distance, even within state, if it’s going to disrupt your child’s relationship 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 now cover counseling. I’d be happy to recommend some names to you.

Counseling can also help your children by giving you guidance to help limit  the damage and speed the healing.

Counseling helps you separate emotional issues from legal issues so you can make better decisions. Lawyers aren’t trained in psychology, just as counselors aren’t trained in law.

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 muck of divorce. At the very least, read the following suggestions.

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5 suggestions to help you stay sane

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

Watch out for transference.
The stress of divorce can create a setting where raw emotions like anger and fear can surface. Watch out for transferring these feelings to others. Acknowledge them and talk about them, with a counselor if possible.

Life is short. Get on with it.
Yes, you’re going through a terrible time, but try to put your emotions aside so you can be objective. This phase of your life is temporary. Don’t make long-term decisions based on short-term emotions. When you’re divorced, you’ll probably be much happier than you now think possible.

Take the high road.
If you’re feeling wronged, you may have a raw desire for revenge. You can follow your gut, or you can rise above it. The first way leads to misery. The second recognizes that the legal system does not provide revenge. If you must have it, neither a judge nor I can provide it.

Know the perils of court.
You may think that divorce court unfolds like a drama, with a wise judge listening to 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.

“To stay healthy and happy, stay out of hospitals and courthouses.” Amen.

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