DIVORCE CASES IN MASSACHUSETTS

I. Introduction

Before discussing the procedural framework of a divorce action, a word of advice. The one asset that a court cannot divide, but the parties to a divorce can squander cheaply, is trust. If there is some measure of trust maintained between husband and wife during the process,  the divorce will very likely be much cheaper, quicker, easier, and less painful. Actions at the beginning a divorce, such as liquidating bank accounts, can shatter any semblance of trust. People should reconsider before taking any provocative actions at the beginning, which could cost big in the end. 

Another thing to consider is this: especially in cases where there are children involved, the parents will deal with each other for the rest of their lives. Actions taken in the heat of battle are often remembered for years afterward. 

II. Before you see a Lawyer, See a Counselor

The first question that needs to be answered in a divorce case, is are you sure. In some cases, those involving domestic violence, drug addiction, etc., there is no option but to proceed with a divorce. However, in some other cases, events spin out of control and the process takes over, and people find themselves beyond the possibility of reconciliation 

The genesis of a divorce is often a series of triggering events, each one taking the couple closer to the point of no return. Each action by one party can be seen as giving up on the relationship by the other. Finally, when one party files for divorce, the other is given the emotional justification to give up on the relationship entirely. This can seem an attractive option in the short term when husband and wife find themselves only fighting.

The stark reality of a divorce can be quite different, especially when there are children involved. A court may tell a person when and in what circumstances they can see their children, can take wages directly from a person's paycheck, and even order a person out of the home with little or no notice. Economically, a divorce can be devastating. What once was pooled to pay for one household is now divided to pay for two. The non-custodial parent may pay up to 1/3 of their gross earnings to the other as child support. The custodial parent may have no one to rely on to pick up the slack, and have to live on far less than is comfortable or seems possible. The house may have to be sold. Parents may have to see their children on a visitation schedule set by the court. 

A divorce is a life changing move that should not be taken lightly. 

III.    Anatomy of a Divorce Case

A divorce case can proceed on one of two avenues: a joint petition for divorce where the parties work out all of the details prior to going to court, or a contested divorce which requires multiple court appearances. Most divorce cases are contested cases, which will be discussed first.

    A.    Contested Divorce

        1.    Commencing the action - Filing the Complaint

In a contested divorce, one party, the plaintiff, files a complaint for divorce. The complaint is a one page form required by the court, which requires the following information: 

1. the names and addresses of the parties, 
2. where and when they were married, 
3. where and when they last lived together, 
4. whether there are any children of the marriage, their names and dates of birth,  
5. the grounds for the divorce
6. a prayer for relief, requesting a divorce, custody of children, child support and alimony, and property division. 

The complaint is then served on the other party, and suit is commenced. The other party has an opportunity to file an answer to the complaint, and a counterclaim for divorce. 

A note about grounds for divorce: in Massachusetts, as in all states, there has existed for some time no fault divorce. Prior to no fault divorce, a party wanting to get a divorce over the objection of the other side would have to prove a fault ground of divorce, such as adultery, cruel and abusive treatment, or abandonment. Under the no fault system, a party can simply allege that an irretrievable breakdown of marriage exists, without proving bad conduct on the part of the other person. Furthermore, there is no real benefit to alleging a fault ground of divorce. Therefore, in most cases, parties proceed alleging an irretrievable breakdown of marriage. 

         2.    Motion for Temporary Orders

Usually, shortly after the divorce is filed, a plaintiff will file a motion for temporary orders. The motion gives the court an opportunity to make temporary determinations as to which party has custody of children, how frequent and when visitation should occur, and how much one party should pay to the other as child support and/or alimony weekly during the pendency of the divorce proceedings. The motion is filed and served on the other party at least ten days in advance of the court date. In many cases, on the date of the motion hearing, the parties will draft an agreement as to the provisions. If the parties cannot agree, then each party presents their side to the judge for a determination.

                a.    Custody and Visitation

If there are minor children, one party is granted temporary physical custody of them. The standard applied by the court is what is in the best interests of the children. In many cases, it is clear which party will have temporary physical custody. In cases where it is not clear, the court may appoint a Guardian Ad Litem, usually a lawyer or therapist, to investigate and make reccommendations as to which party should have temporary physical custody. 

The non-custodial parent is awarded visitation with the children. A standard visitation schedule is every other weekend for overnight visitation, and one evening (not overnight) during the week. Actual visitation schedules vary widely. 

                b.    Child Support and Alimony

The non-custodial parent is ordered to pay weekly child support to the custodial parent. The presumptive amount of child support is determined by a formula, which takes into account the gross  weekly income of each party, the number and age of the children, day care costs, if any, and the cost and source of health insurance. Although the amount can vary somewhat, the amount of child support is approximately thirty percent (30%) of the gross weekly income of the non-custodial parent for the first $75,000 annually earned by the non-custodial parent. Child support for earnings over the first $75,000 is discretionary with the court. 

The term child support is sort of a misnomer. The support is really family support. The payor of child support has no control over how the money is spent by the custodial parent. 

Alimony is support for the other spouse, and can be awarded regardless of whether there are minor children. Alimony is based on income and need, and is the discretion of the court.  

To determine the income, assets and needs of the parties, each party is required to complete financial statements on forms provided by the court. The financial statement is signed under oath, and either party is further entitled to additional information through formal discovery if necessary. 

                c.    Health Insurance and Uninsured Medical Expenses

Also addressed in a temporary order is which party will provide health insurance for the children and each spouse. If there is an additional charge for the health insurance to either party, then this is reflected in the amount of child support. 

                d.    Other Matters in Temporary Orders

The court is empowered, and either party is able, to ask for other matters to be addressed in a temporary order, as required by the particular situation. Furthermore, temporary orders can be modified during the pendency of the divorce by further motion.

        3.    Pre Trial Conference, Final Settlement or Trial

After the entry of temporary orders, there may be a period of discovery, and possibly further motion hearings. In many cases, however, the next court date is the pre trial conference. This date is scheduled by the court after the parties indicate that the case is ready for trial. In most cases, the pre trial conference is an opportunity to settle all matters and obtain the divorce. 

            a.    Negotiations, Four Way Conference, and Separation Agreement

The matters settled in the divorce itself are the same as at the temporary order stage, that is, custody, visitation, child support, alimony, and health insurance, as well as other matters, the most significant being division of property. If a settlement is reached, the parties will sign a Separation Agreement setting forth their agreement as to all matters. 

In many ways, the period between the filing of the divorce and the pre trial conference, which is usually six months or so, is a period of getting used to the visitation schedule, paying and receiving support, and more generally, life without the other party. 

Prior to the pre trial conference, the parties are required to meet with their lawyers for a four way conference, to discuss settlement. In many cases, the most or all matters are settled in the four way conference. In others, they are not.

            b.    Pre Trial Conference

The vast majority of cases are eventually settled. Many are settled at the pre trial conference. The pre trial conference is a date in court where the lawyers and clients may present unresolved issues to the judge for informal mediation. In some cases, this will settle a case because the parties get an indication from the judge what he or she would do in a case like theirs. 

            c.    Trial

A divorce trial is like other trials: witnesses testify, evidence is submitted, and arguments are made. A divorce case is tried to a judge without a jury. After the trial, the judge will enter a judgment, addressing the same issues an agreement would cover; custody, visitation, child support, alimony, health insurance, and property division. After all the evidence is in, the parties submit proposed judgments to the judge, indicating how each party would like those issues decided. 

    B.    Uncontested Divorce - Joint Petition for Divorce

As noted at the top of the page, there are two ways a divorce case can begin. The first is a contested case, as discussed above. The second way is an uncontested divorce, initiated by a Joint Petition for Divorce. 

An uncontested divorce is a case that is settled before it is filed. In order to filed an uncontested divorce, the parties must have already negotiated all of the final terms of the divorce; custody, visitation, child support, alimony, health insurance, and property division. The parties then file the agreement with the Petition, a court date is scheduled, and the court approves the agreement, granting the divorce. 

Because all of the terms need to be agreed to in advance, uncontested divorces are not the norm. One major advantage is that the friction between the parties tends to be less in an uncontested divorce.

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Mark W. Helwig

Attorney at Law

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Sudbury, Massachusetts 01776

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