Before You File for Divorce

FAQ’s About Massachusetts Divorce Law

With the national divorce rate close to 50%, many spouses have questions about divorce and the legal process of divorce. Divorce laws differ from state to state. Here is a summary of Massachusetts divorce law and frequently asked questions about this topic.

Q: Is there a legal separation in Massachusetts?

A: There is no formal “legal separation” of a couple in Massachusetts. However, if a married couple is now living apart, either spouse may file a Complaint for Separate Support. In the complaint, the Plaintiff must allege one of the following: 1) the Defendant is not providing suitable support, without justifiable cause; 2) the Plaintiff has been deserted by the defendant; 3) the Plaintiff is actually living apart from the Defendant for justifiable cause; or 4) the Plaintiff has justifiable cause for living apart from the Defendant.

In the action, the spouse may seek the following relief: 1) establish that such living apart from the Defendant is for justifiable cause; 2) prohibit Defendant from imposing any restraint on Plaintiff’s personal liberty; 3) grant custody of the minor and unemancipated children; 4) order suitable amount of support for the Plaintiff and/or minor children with suitable provision for health insurance; 5) order conveyance of real estate owned by the parties.

Thus, although there is no formal “legal separation” in Massachusetts, a Complaint for Separate Support allows spouses to live separate and apart, and can permit a court to issue orders regarding child custody, child support, alimony, and property division. This, in essence, accomplishes all that a divorce accomplishes, except the parties remain married.

Spouses can also consider executing a Postnuptial Agreement. A Postnuptial Agreement is similar to a Prenuptial Agreement, but is executed after the couple is already married. The Postnuptial Agreement outlines the rights and responsibilities of each spouse in the event of a separation or divorce. It also outlines how your assets will be divided, as well as other issues, such as the payment of alimony, and which spouse will provide medical insurance.

Q: How do I start the divorce process?

A: Massachusetts has two different methods of divorce: 1) uncontested divorce; and 2) contested divorce.

If both spouses agree to get a divorce, and also agree to the terms of a divorce, then they can file a Joint Petition for Divorce pursuant to M.G.L. c. 208 §1A, along with a Separation Agreement, which outlines the terms of the divorce settlement, and also a Financial Statement for each spouse, and an Affidavit of Irretrievable Breakdown, outlining that the marriage is irretrievably broken and there is no chance at reconciliation. Divorce mediation is a great cost effective way to resolve an uncontested divorce. Through a divorce mediator, spouses can negotiate the terms of settlement for the divorce, which the divorce mediator will facilitate. The divorce mediator will then prepare the necessary documents that must be filed with the court.

If only one spouse either agrees to the divorce, or the parties disagree to the terms of the divorce, then one spouse may file for a contested divorce by filing a Complaint for Divorce. There are many grounds upon which a spouse may file for a contested divorce, but the most popular is the no-fault grounds of Irretrievable Breakdown of the Marriage. With no-fault grounds, the spouse does not have to prove any grounds for fault to obtain a divorce. However, with the other fault-based grounds of divorce, the spouse must affirmatively prove the grounds of divorce alleged to obtain a divorce. These fault-based grounds include: 1) Adultery; 2) Cruel and Abusive Treatment; 3) Gross and Confirmed Habits of Intoxication; 4) Gross or Wanton and Cruel Refusal or Neglect to Provide Suitable Support; 5) Impotency; 6) Sentence or Confinement to Prison; and 7) Utter Desertion.

Q: Where should I file for divorce?

A: The Probate and Family Court is the court in Massachusetts that hears all divorce cases. A spouse should file for divorce with the Probate and Family Court in the county where he/she is currently residing, unless one of the spouses still resides in the county where the parties last lived together as husband and wife. In that case, the divorce must be filed with the Probate and Family Court in the county where the spouses last lived together.

Q: How long does a divorce take?

A: It depends on the type of divorce filed.

In a Joint Petition for Divorce, the parties both agree to divorce one another, and come to a full, fair, and reasonable settlement memorialized by a Separation Agreement prior to filing for divorce. This can be done by the parties’ respective attorneys brokering the deal, or through divorce mediation. The negotiation of this settlement oftentimes can take only a few weeks. Once the settlement is memorialized into a Separation Agreement, the necessary court documents are prepared to file a Joint Petition for Divorce, and then the Court assigns a date for the divorce hearing. Depending on the case load of the specific court, this can be in a matter of days, or a matter of months. However, typically a Joint Petition for Divorce is resolved anywhere between 1-4 months.

A Complaint for Divorce is given a track assignment of 14 months by the court. A track assignment is a time standard established by the court, whereby the court estimates how long a case will take to come to full resolution, either by settlement or by trial. This track assignment however, is not concrete; a contested divorce can be resolved in less than 14 months, or more than 14 months. This largely depends on how cooperative the parties are and how willing they are to work together to come to a fair and reasonable settlement. This also depends on how extensive discovery is during the pendency of the divorce. If the parties are willing to work together and come to a fair and reasonable settlement, the divorce can be resolved in a matter of months, typically 6-8 months, or even less in certain cases.

However, if the parties do not get along and it is a highly contentious case, it can take longer than 14 months. In the event that a case goes to trial, it is very possible that a divorce can take even longer than 14 months, and even up to 2-3 years. This is partially due to the fact that the Probate and Family Court in Massachusetts is severely short-staffed and backlogged, which means many judges do not have any availability on their docket for a trial for at least 3-6 months out, once the parties are ready to schedule a trial.

Thus, the amount of time it takes to get divorced all depends on how much the parties are willing to work together.

Q: How much does a divorce cost?

A: The total cost of a divorce case will largely depend on how much the parties are willing to work together to come to a fair and reasonable resolution. Approximately 95% of divorces settle without the need for trial in Massachusetts.

In Massachusetts, spouses can file a Joint Petition for Divorce, which is also known as an uncontested divorce. In this type of case, the parties both agree to divorce one another, and come to a full, fair, and reasonable settlement memorialized by a Separation Agreement prior to filing for divorce. This can be done by the parties’ respective attorneys brokering the deal, or through divorce mediation. Where the parties’ attorneys broker a settlement, the costs are likely to be only a few thousand dollars, or less. In cases where the parties agree to mediate, many mediators in Massachusetts will mediate the divorce case and prepare the divorce filing for a flat fee.

In contested divorces, the cost of a case will depend on how well the parties get along, and how much discovery is conducted prior to settlement, if the case settles. If the case settles, and discovery is not too extensive, the cost of the divorce is likely to be only three to five thousand dollars. However, as the case becomes more contested, and more discovery is conducted, the costs of the divorce will increase, and could, potentially, enter the tens of thousands of dollars prior to settlement.

The 5% of cases that actually end up going to trial, tend to cost much more, due to the cost of protracted litigation, and the extensive preparation necessary for a party’s attorney to be prepared for trial, as well as the cost of attending the trial. In these cases, the cost of a divorce can easily be in the tens of thousands of dollars.

In addition to legal fees paid to an attorney and/or mediator, there is also the required filing fee with the Court. The filing fee for an uncontested divorce in Massachusetts currently is $215.00. The filing fee for a contested divorce is $220.00. There also additional fees that can be incurred, such as fees for a constable or sheriff to serve papers.

Q: What is an automatic financial restraining order?

A: Massachusetts has a prohibition on depleting, transferring, or encumbering marital assets during a divorce pursuant to Supplemental Probate and Family Court Rule 411. More specifically, the Rule states:

(1) Neither party shall sell, transfer, encumber, conceal, assign, remove or in any way dispose of any property, real or personal, belonging to or acquired by, either party, except: (a) as required for reasonable expenses of living; (b) in the ordinary and usual course of business; (c) in the ordinary and usual course of investing; (d) for payment of reasonable attorney’s fees and costs in connection with the action; (e) written agreement of both parties; or (f) by order of the court.

(2) Neither party shall incur any further debts that would burden the credit of the other party, including but not limited to further borrowing against any credit line secured by the marital residence or unreasonably using credit cards or cash advances against credit or bank cards.

(3) Neither party shall directly or indirectly change the beneficiary of any life insurance policy, pension or retirement plan, or pension or retirement investment account, except with the written consent of the other party or by order of the court.

(4) Neither party shall directly or indirectly cause the other party or the minor child(ren) to be removed from coverage under an existing insurance policy, including medical, dental, life, automobile, and disability insurance. The parties shall maintain all insurance coverage in full force and effect.

This rule immediately applies to the Plaintiff upon filing the Complaint for Divorce. The rule applies to the Defendant when he/she is served with the Summons and Complaint.

Q: Do I have to disclose my assets and financial situation?

A: Yes, pursuant to Supplemental Probate and Family Court Rule 401, both spouses must complete and exchange a court approved Financial Statement form, which discloses their income, weekly expenses, assets, and liabilities. If a spouse makes $75,000.00 or more in a year, then he/she must complete a Long Form Financial Statement. If a spouse makes less than $75,000.00 in a year, then he/she must complete a Short Form Financial Statement.

Q: Should I hide my assets?

A: Absolutely not!

Within forty-five (45) days from the date the Defendant is served the Summons and Complaint for divorce, Supplemental Probate Court Rule 410 requires that both parties exchange the following financial documents:

1. The parties federal and state income tax returns and schedule for the past three (3) years.

2. Statements for the past three (3) years for all bank accounts held in the name of either party individually or jointly, or in the name of another person for the benefit of either party.

3. The four (4) most recent pay stubs from each employer from whom the party worked.

4. Documentation regarding the cost and nature of available health insurance coverage.

5. Statements for the past three (3) years for any securities, stocks, bonds, notes or obligations, certificates of deposit owned or held by either party or held by either party for the benefit of the parties minor children, 401(k) statements, IRA statements, and pension plan statements for all accounts listed on the 401 financial statement.

6. Copies of any loan or mortgage applications made, prepared or submitted by either party within the last three (3) years prior to the filing of the complaint for divorce.

7. Copies of any financial statements and/or statements of assets and liabilities prepared by either party within the last three (3) years prior to the filing of the complaint for divorce.

This disclosure is accompanied by a Statement of Compliance with Supplemental Probate Court Rule 410. This Statement of Compliance is signed under the pains and penalties of perjury, which means if any assets are not disclosed, and they are required to be disclosed under Supplemental Probate Court Rule 410, then that party can be subject to criminal sanctions for committing perjury.

Finally, after a divorce is finalized, if a spouse finds that another spouse hid assets during the pendency of the divorce action, the Court has the authority to reopen the divorce action and reapportion assets between the spouses, based upon the newly found assets. This typically does not end well for the party who has hidden the assets. Typically, the spouse that discovers the previously hidden assets will be awarded a greater proportion of marital assets when the divorce action is re-opened.

Q: Can I get an Order from the Court while my case is pending?

A: Yes. In most contested divorces, at least one spouse files a Motion for Temporary Orders requesting the court to issue an Order addressing different issues that have arisen in the divorce. A Temporary Order can address many things, which include:

• Child Custody and Visitation

• Child Support

• Alimony

• Which spouse will maintain health insurance for the other spouse and the children

• Which spouse will have exclusive use and occupancy of the marital home

• How the parties will file taxes for the prior or current year

• Which party will claim tax dependency exemptions while the divorce is pending.

As a divorce progresses through the court, a Temporary Order can be modified if the parties’ circumstances change during that time.

Q: How is property divided in a divorce?

A: Massachusetts is an equitable distribution state. This means that the assets are not automatically divided equally, as they are in a community property state. Rather under Massachusetts laws, the Court has the authority to assign property owned by either spouse, regardless of how or when acquired. The factors that are considered in dividing property are outlined in M.G.L. C. 208 §34, and include:

1. Length of marriage.

2. Conduct of the respective parties during the marriage.

3. Ages of the respective parties.

4. Health of the respective parties.

5. Station of the respective parties.

6. Occupations of the respective parties.

7. Amount and sources of income of the respective parties.

8. Vocational skills of the respective parties.

9. Employability of the respective parties.

10. Estates of the respective parties.

11. Liabilities of the respective parties.

12. Needs of the respective parties.

13. Current needs of the minor children of the marriage.

14. Future needs of the minor children of the marriage.

15. Opportunities available to the respective parties for future acquisition of capital.

16. Opportunities available to the respective parties for future acquisition of income.

17. Contributions of the respective parties in the acquisition, preservation or appreciation in value of their estates.

18. Contributions of Husband and Wife as homemaker.

In theory, under the law, any and all property each spouse owns is subject to equitable distribution in Massachusetts. However, in general, property acquired prior to the marriage may be retained by the spouse who owned it prior to the marriage. Also, property acquired by a spouse after filing for divorce may be considered separate property. However, the other spouse’s attorney can always make an argument that this property is still subject to division if both spouses contributed to the maintenance and appreciation of that asset.

Equitable distribution in Massachusetts is highly case-specific. A party to a divorce should consult with a family law attorney before making any decisions about property division or equitable distribution.

Q: How is child support calculated?

A: Child support is calculated based upon the Massachusetts Child Support Guidelines. The Child Support Guidelines often compare the respective financial circumstances of each parent and also look at the standard of living the children enjoyed while the parents were still married. Based upon the Guidelines, both parents gross income is calculated to determine the noncustodial parent’s child support obligation. Gross income can include many types of income, including:

1) (a) salaries, wages, overtime and tips, (b) income from self-employment;

2) commissions;

3) severance pay;

4) royalties;

5) bonuses;

6) interest and dividends;

7) income derived from businesses/partnerships;

8) social security excluding any benefit due to a child’s own disability;

9) veterans’ benefits;

10) military pay, allowances and allotments;

11) insurance benefits, including those received for disability and personal injury, but excluding reimbursements for property losses;

12) workers’ compensation;

13) unemployment compensation;

14) pensions;

15) annuities;

16) distributions and income from trusts;

17) capital gains in real and personal property transactions to the extent that they represent a regular source of income;

18) spousal support received from a person not a party to this order;

19) contractual agreements;

20) perquisites or in-kind compensation to the extent that they represent a regular source of income;

21) unearned income of children, in the Court’s discretion;

22) income from life insurance or endowment contracts;

23) income from interest in an estate, either directly or through a trust;

A parent’s child support obligation is calculated by adding the combined gross incomes of the recipient parent and the payor parent, less any child care, health insurance, dental and vision insurance, and other child support obligations already paid. This combined gross income is then multiplied by a factor based upon the number of children in the family. The product of the parents’ gross income multiplied by the pre-determined factor based upon the number of children in the family is the combined child support obligation of the parents. Each parent’s child support obligation is then factored on a pro-rata share based upon their gross incomes.

Even in cases where a payor parent has no income, they can be ordered to pay a state-mandated minimum order of $80.00 per month (or $18.46 per week). In cases where the parents’ combined income exceeds $250,000.00, the court is not obligated to order a child support obligation above the first $250,000.00, but has the discretion to do so.

The Child Support Guidelines are drafted on the presumption that children split their time between parents on approximately a 1/3 and 2/3 basis. In cases where the parenting time is different, the Guidelines can be adjusted to reflect the actual parenting plan.

Q: How is custody determined?

A: In Massachusetts, along with most other states, there are two types of child custody: 1) legal custody; 2) physical custody.

When a parent has legal custody of a child, then the parent has the right to make important and major decisions in the child’s life. This includes where the child will go to school, decisions about the child’s health and welfare, what religion(s) the child will be raised in, as well as other significant decisions affecting the child. Typically, but not always, both parents share legal custody, which then is known as joint legal custody.

Physical custody relates to who the child physically resides with. If a child resides with one parent more than the other parent, then the parent who has the child more of the time has primary physical custody. If parents equally share time with the child, then there is no primary physical custodian, but rather joint or shared physical custody.

In Massachusetts, the legal standard for developing a custody arrangement is the “best interests” of the child. Through the legal standard, the courts analyze how a child’s living arrangements and upbringing affect their physical, mental, and emotional well-being, and based upon that, what is best for the child. Oftentimes, the determination is very case and fact-specific, and there is not one “clear cut” answer to any case. In making this determination, there is no presumption that one parent is the “better” parent in awarding custody. That means that there is NOT a presumption that the wife/mother will automatically get custody of the children. Absent a showing that a parent is unfit, both parents will be equally considered for custody of the children.