Divorce FAQ

Q: Should I file first for divorce?

A: The answer to this question is largely a case-specific answer.

The determination of value of assets, which goes to the equitable division of marital assets pursuant to M.G.L. c. 208 §34, is determined from the date of marriage to the date the Defendant was served. Thus, if the plaintiff intends on acquiring substantial assets in the future, it could be beneficial to file for divorce prior to acquiring these assets.

Additionally, should the divorce case go to trial, the Plaintiff has the right to present their case first, along with the right of rebuttal after the Defendant has presented his/her side of the case. Being able to be the party to present his/her case first at trial can set the tone of the trial, and leave an impression on the judge.

However, divorce is also a very emotional and personal decision. If you believe that you are not emotionally ready to file for divorce, or that the marriage may still have a chance of being repaired, it may be beneficial to wait on filing for divorce.

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.

Q: At what age can my child decide which parent to live with?

A: Only at the age of majority, or age 18, can a child officially and legally decide with which parent they will live, or, in the alternative, if they will move out on their own. Until a child is 18, any preference a child may state as to which parent he or she would like to live with is not binding upon the court. If a young child states a preference as to which parent he or she would like to live with, that stated preference is not likely to be given much, or any, credence.

However, as a child becomes older, usually sometime in the early teens, any stated preference the child has as to with which parent he or she would like to live is given credence and some weight by the court. There is no “magical” age, though, at which a court will start giving credence to a child’s stated preference.

Please note that this is not a binding preference; the court is not bound to abide by the child’s preference. The legal standard for custody and visitation in Massachusetts is the “best interests” of the child, which includes many factors that must be considered. One of the factors, certainly, is the child’s preference, but that is only one of many factors.

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 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 a few 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.

Q: How long does a divorce take?

A: There are two types of divorces actions in Massachusetts: 1) Joint Petition for Divorce (also known as an uncontested divorce); and 2) Complaint for Divorce (also known as a contested divorce).

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 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, 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: Does the Wife/Mother always get custody?

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.

Q: How hard is it to move out of state?

A: In Massachusetts, a parent is free to move out of state by themselves. However, if a parent wishes to move out of state with their children, there is a statute (M.G.L. c. 208 §30) that states that where there is a pre-existing custody order of a child, the child may not be permanently removed from the Commonwealth without the consent of both parents or by order of the Court. If a parent is seeking to move out of state, and the other parent will consent to the move, then it is a relatively easy case. In such a case, the current custody and parenting plan must be modified to reflect the move out of state, but that may be done by a Joint Petition to the Court, which accompanies the new custody and parenting plan.

In cases where the other parent does not consent to the move out of state, the parent wishing to move must file a Complaint for Modification. The Complaint for Modification must state a material and substantial change in circumstances warranting the change in the custody and parenting plan. Furthermore, rather than applying the “best interests” standard that is typically applied in custody and visitation cases, the court will apply the “Real Advantage Test,” which is a higher and much more stringent burden to prove.

Through the Real Advantage Test, the parent wishing to move must prove that the move is a “real advantage” to the child and himself/herself. When applying the Real Advantage Test, the Court will consider a number of factors, including: 1) whether the parent has a good, sincere reason for wanting to remove to another jurisdiction; 2) the interests of the child as a result of the move; 3) the interests of the parent seeking to move; 3) and the impact of the move on the noncustodial parent.

There are many sub-factors considered within the Real Advantage Test, and if a parent is seriously considering moving out of state, they should consult with a family law attorney prior to making the move.

Furthermore, if a parent moves out of state without obtaining the consent of the other parent and also fails to obtain the approval of the court, then they are subject to being held in Contempt of Court or being charged with parental kidnapping.

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.

Additionally, each party must file a Rule 410 Financial Statement, which discloses a party’s income, assets and liabilities. This, too, must be signed under the pains and penalties of 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: Will we have to sell the house?

A: Not necessarily. Under Massachusetts law, spouses must divide their assets equitably, this does not necessarily mean that it must be an equal division of assets. In dividing assets M.G.L. c. 208 §34 requires the parties and the court to consider the following elements:

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.

When all of these elements are considered, then the parties may divide their assets, including the marital home, as they see to be fair and reasonable. Such a determination is usually very fact and case-specific, so there is no one answer to this question. The parties must come up with a resolution that works for them.

Some of the possible solutions as to what will happen to the marital home are:

1. the custodial parent resides in the marital home with the children until the children are emancipated, and then the house is sold;
2. one spouse buys out the interest of the other spouse;
3. the house is sold.

These are only some of the possible resolutions as to what can happen to a marital residence. Each case is different, which means a party to a divorce should consult with a family law attorney to determine what is best for their given situation.

Q: Should I move out?

A: This is a difficult, and largely personal, decision to make. Absent an order from the Court, you are under no legal obligation to move out.

If you and your spouse can still get along relatively well, especially where you have children, and you are able to co-parent the children while living in the same home, it is probably best that you remain in the home for the time being. That way you can continue to have daily interaction with your children, and assist them with the transition of the divorce.

However, if you and your spouse are not getting along, and it is a highly contentious situation, it may be best for all involved if one spouse moves out. Who moves out will largely depend on the facts of the case. Although in situations of domestic violence, the law states that the abuser may be required to move out of the home until there is a further order of the court.

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:

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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 1;
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;
24. lottery or gambling winnings received either in a lump sum or in the form of an annuity;
25. prizes or awards;
26. net rental income;
27. funds received from earned income credit; and
28. any other form of income or compensation not specifically itemized above.

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.

In cases in which the child(ren) are residing with both parents, then the child support guidelines must be run with as if each parent was the payor parent, and the parent with the larger obligation must pay the difference in the two Child Support Guidelines amounts.

Q: What is a non-marital asset?

A: Massachusetts is an equitable distribution state. That means that 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:

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.