Below are some Frequently Asked Questions about divorce. The questions are placed within various categories within divorce and family law in Massachusetts, including property division, child support, child custody, and spousal support/alimony. Scroll down to view the various questions, and click on a question to display its answer. Please note that the information provided in these sections is for general information purposes only, and may or may not apply to your case. If you have any questions about your specific circumstances, please contact us.
A party to a probate or family court action is not required to have an attorney. However, having representation while navigating the confusing world of the court system can ensure that paper work is completed correctly, your rights are asserted timely and fully, and arguments are made to the courts in a manner most likely to get you the results you are entitled to under the law.
First are some practical concerns of whether you will be moving out of the marital residence, whether there will be any safety concerns once your spouse learns of the divorce, and keeping any valuable items or important papers safe that may “disappear” once your spouse learns of the divorce. If any of these concerns exists, please see an experienced divorce attorney in confidence before proceeding. Second, is the procedure of filing for divorce and whether you can file a “simple” divorce, or “contested” divorce.
In a divorce, the court has the power to resolve issues of custody, support, and property division between the two spouses and their children. These are broad categories with many details that are included. However, the court can only address issues related to the family and cannot address issues of children not born to or adopted by the parties, property not owed by the parties, other friends or family members, etc.
A divorce can be completed quickly, or can take years. It large depends on how much the parties fight, how disputed the issues are, how much evidence needs to be gathered and presented to the court, and many other factors. Some couples are able to sort out their affairs quickly, while other couples continue to fight over parenting issues long after the divorce is completed.
The cost of a divorce depends largely on how much the parties disagree over the divorce matters. Because attorneys bill hourly, the more time and attention that is given to your case, whether on the phone, writing letters, appearing in court or gathering and reviewing evidence, the more the divorce will cost. It does happen that one party will deliberately increase attorneys’ fees for the other party and the court has the power to order one party to pay the other’s attorneys’ fees in some circumstances.
An uncontested divorce, otherwise know as a “simple” divorce, is a joint petition to the court to enter a divorce. The parties must agree in advance on the terms of their divorce including all child custody matters, child support and alimony, property division, and other necessary provisions. The terms must be written, notarized and submitted to the court with the Petition and other necessary documents. The divorce judgment will enter 30 days after the court hearing on the matter, and become final 90 days later.
If your spouse will not agree to a “simple” divorce proceeding, or you cannot agree on all the terms, then you must file a contested divorce. These proceeding are more common because the parties cannot agree on issues of child custody, support, property division or other terms, or the parties are unable to speak to each other. In this situation, the parties are asking the court to make decisions for them. The litigation will continue until either the parties reach an agreement, or the court makes a decision following a trial.
In Massachusetts, there is no such thing as a “legal separation.” The parties separate when they stop living together as husband and wife. This may mean that either one party has moved out of the house, or that the parties live separate lives even though they share the same address. One party can obtain an order for separate support (spousal or child support) without filing for a divorce, but a married couple remained married until the divorce is granted.
There is no time requirement for separation before filing a Complaint for Divorce. In fact, in some circumstances, couples continue to reside together during the divorce process. With a contested divorce, there must be at lease 6 months that passes between filing the divorce and entering a judgment, but uncontested divorces can be entered much faster.
It is not required that both parties agree to the divorce. As long as one person want a divorce, the court will make a finding that an irretrievable breakdown exists in the parties are granted the divorce.
Yes, although there are more hoops to jump through to get that accomplished because the person must be served with the Complaint for Divorce. However, there are alternative ways to serve a person, and private investigators can help locate a person in order to ensure that a divorce is entered.
Generally, service will be accomplished by personally delivering the documents “in hand” by a constable or sheriff. There are alternative ways to serve a person if they cannot be located, such as by publication in a newspaper.
Temporary orders are entered to maintain the status quo in the family while the divorce is pending. Parties often need orders to address the payment of child or spousal support, parenting times for each parent, maintaining insurance for the family, and against disposing of money and property. These orders stay in place until a final judgment is entered, or the orders are changed.
Divorce issues cannot be settled unless the parties talk and agree on a resolution. Many parties are not able to discuss issues between themselves and will either use a mediator, use their attorneys, or both. A neutral third party can be very effective to help the parties come to a resolution.
The Separation Agreement is the document that states the terms of your divorce, if you have come to a settlement. The Separation Agreement will be approved by the judge and entered as a final divorce judgment.
The only alternative to a trial is a settlement. However, there are many ways in which a settlement can be discussed and agreed upon. In most cases, a settlement is reached and the parties are divorced without the need for a trial. For most parties, there is no need to take a divorce matter to trial as the issues can be resolved between themselves or with the assistance of their attorneys and/or a mediator.
Parties are given the option to return to their maiden name upon the entry of the divorce judgment. However, the name is not legally changed until the divorce judgment is taken to the Social Security office and a new social security card is provided with the new name. The card can then be used to change the name on all accounts, memberships, associations, etc.
Property Division Questions related to the division of property pursuant to a divorce judgment.
Marital property is any property or debt obtained during the marriage. It may include earnings, retirement accounts, personal property, gifts or inheritances. Property is considered marital even if it was gifted to one spouse, in only one spouses name, or not disclosed to the other spouse.
Separate property is any property or debt obtained prior to the marriage, or after the divorce. Generally, if one party came into the marriage with an asset or debt, that property will be theirs after the divorce. However, the court has the power to transfer the separate property to the other spouse, if necessary.
Property is divided by the court’s discretion based upon several factors including conduct, age, health, station, occupation, amount and source of income, vocational skills, employability, estate, liabilities and needs of each party, the opportunity for future acquisition of assets and income, the amount of any alimony award, and contribution to the household (monetary and non-monetary). Generally, the court divides the property and debt obtained during the marriage equally between the parties. The court has the discretion to divide all property, even property obtained before the marriage or after the separation of the parties, up to the time the divorce judgment is entered. The court also has the power to make uneven division of property if it feels the facts and circumstances of the divorce warrant it.
With special items of property, such as paintings, heirlooms, collectibles, or even pets, the court will consider facts such as where the property came from, who paid for the property, who selected the item and who has a greater interest in the property in deciding who will keep possession of the property.
Generally, if one party came into the marriage with an asset or debt, that property will be theirs after the divorce. However, the court has the power to transfer the separate property to the other spouse, if necessary. This primarily occurs when one party has abused the marital property by overspending or wasting the marital property and the court will transfer the separate property to compensate the spouse.
Property is marital or separate regardless of how it is titled or if it is kept separate. One party is not entitled to keep the house, or a bank account merely because it does not list both names. The court can ensure pre marital property remains with the named party, or make uneven property divisions if it finds the facts support such orders.
Generally, retirement accounts are split equally following a divorce. The parties will enter an order to divide the contributions to the retirement account from the date of the marriage to the date of the divorce. How and when the receiving spouse obtains the funds depends largely on the type of retirement account, and may include tax penalties for early withdrawals.
Once the parties agree, or the court orders, a retirement account to be divided, a Qualified Domestic Relations Order (QDRO) must be prepared based upon the terms of the retirement plans and the plan administrator’s requirements. Some retirement accounts, like 401(k), are simple to divide, while others, like State pensions, are much more complicated. The availability and pay out of the funds following the division are determined by the terms of the plan and cannot be altered by the courts.
Debts are assigned in much the same way as assets. It is generally presumed that the debts were incurred by both parties for marital reasons and are divided equally. However, where one party overspent, purchased unreasonable items, or hid the debts from the other spouse, the court may divide the debts unequally.
Generally, high asset divorces include the same elements of custody, support and property division as any other divorce. However, high asset divorces often include more complicated issues related to trusts, inheritances, and tax implications for the division of certain assets. They often require tax analysis to determine an equity split of assets with current and future tax consequences. It is important to have a solid understanding of these issues as well as experts to make the necessary financial analysis.
Child Custody Questions relating to child custody, visitation, and parenting plans.
Custody is divided into 2 types: legal and physical. Legal custody is the decision making on behalf of the minor child. Physical custody is the daily caretaking for the child. Physical custody includes times when the child is in school, with friends or asleep, and the custodial parent remains responsible for the child during these times.
A parenting plan is what is used to divide the times that the child spends with each parent. Courts no longer use the terms “custody” and “visitation” because they inaccurately describe the time that is spent with the parent. When the child is with each parent, that party is expected to be responsible for the well-being of the child and is therefore parenting the child regardless of the length of time in the parent’s care.
A divorce action will include orders related to custody of a minor child, as well as for support, property division, and other matters. You do not have to file a divorce to receive custody orders and can instead file a Complaint for Custody. However, any orders under this type of action would not include a divorce or any matters other than custody and child support.
An unmarried parent can file for custody of the child. The process is similar to that of a divorce in that a Complaint is filed and the court will issue orders for legal custody, parenting plan, and support.
When a child is born to unmarried parents, the mother has sole legal custody. The father has to seek an order to have joint custody with the mother. If the father was listed on the birth certificate, the process is much easier. However, depending on the facts of the case and the involvement in the child’s life, the court may or may not grant joint legal custody to the parents.
The parents are encouraged to design a parenting plan that works best for their family and their children. However, many parents cannot agree on what is best in these situations. In those cases, the courts decide what is in the best interest of the children. The court must step in as a “de facto” parent to make decisions on any issues the parents cannot agree upon. In many situations, it is in the best interest the parents and the children to make compromises, or to hire the services of a Parenting Coordinator to help make parenting decisions.
Children are not given direct access to the courts to express their interest in parenting plans. The court may assign a Guardian Ad Litem (GAL) to investigate the family situation, interview the children, family, friends and other persons in the children’s lives, and to make recommendations on an appropriate parenting plan. However, while the courts place much weight on these investigations, they are not bound to follow the recommendations and can make other orders that the court has found are in the children’s best interest. The court may also order a Family Services Officer to interview the children or may appoint an attorney on behalf of the children.
There does not exist a specific stated age at which children make their own decisions. When the court determines that the child is sufficiently mature to make their own decisions, they it can consider the children’s wishes through one of the means above (Guardian Ad Litem, family services officer interview, attorney for the children). In Guardianships, a child aged 14 or older must consent to the guardianship, so this age has been used as general guidepost for when children have a voice in their own custody. As the children near the age of 18 their preferences weigh more heavily in the court’s determinations.
Assuming that you are allowed vacation time with your children, and no court orders specifically state limits on where you can travel, then you should be allowed to travel out of the state with your children for vacation. International travel can be more complicated as it will involve obtaining a passport for the children. Passport applications generally require the signature of both parents and, without cooperation, may require a court order to be able to get the passport.
If both parties agree that the children can move out of state with one parent, then the parties should put that agreement in writing and the children are free to relocate. However, if both parties do not agree, then a court order is required. The relocating parent must prove that there is a “real advantage,” then must prove that it is in the children’s best interest to move. Generally, a real advantage is proven with a showing that the parent has a new job, a promotion, a new marriage, or some other circumstances that would improve his or her life. Once that is establish, the question turns to whether the children’s lives will be better in the new state. These are difficult cases for both parties, and for the court to decide.
Custody order are always modifiable and can be changed with a showing that there is a substantial change in circumstance since the last orders were issued. What facts constitute a substantial change in circumstance may be more difficult and may depend on the court’s evaluation of the facts. The parties can make modification to the custody arrangements as they agree to without the involvement of the court.
The enforcement of any court order is done by filing a Complaint for Contempt. The court must make a determination that a clear order exists and that the party violated the order. The party who filed the contempt must prove that the order was not being followed, and the court can make alternative custody orders if they find it is in the best interest of the child.
Child Support:Questions relating to setting the amount of support, enforcement, and modification.
While a divorce matter is pending, the court can enter temporary orders for custody, support and other related matters until a final settlement or judgment is entered. It is common for the court to enter temporary spousal support and/or child support orders to ensure stability.
The Commonwealth of Massachusetts has adopted Guideline Child Support Orders including a worksheet for calculating the amount of a child support. Essentially, the court takes into consideration the gross income of both parties, subtracting costs for health insurance, dental insurance, child care, and other child support orders, and calculates an amount of support based on the number of children and amount of time the payor spends with the children. There are special considerations for second jobs and overtime, high wage earners, children in college and other special circumstances.
It is unusual for the courts to deviate from the child support guidelines, however the courts are given discretion to do so when they feel the situation warrants additional child support. However, both parents are required to support their children and courts are reluctant to deviate from the legislative guidelines.
Maybe, but probably not. In Massachusetts, child support is terminated upon the emancipation of the child. A child will emancipate upon the latest of the following events: turning 18 years of age, graduation from High School, military duty, marriage, upon turning 21 if they continue to reside with and are principally dependence upon the recipient parent, and continued enrollment in an education program (vocational or college) until graduation. All children shall emancipate upon their 23rd birthday regardless of the above situations.
In Massachusetts, divorcing parties may be required to pay for their children’s college expenses. Whether and to what extent the parties and the child will have to pay depend largely on the financial status of the parties, as well as academic history of the child.
Payment of child support is not based upon seeing the child. In fact, parents who have no custody rights, legal or physical, are still required to pay child support until the child is emancipated. While there are different calculations for parents who spend over 1/3 of the time with their child, there is no decrease for support if you do not see the child at all.
To enforce an order, a Complaint for Contempt must be filed. Once filed, a hearing will take place for evidence that a clear order exists and that the party has violated the order. Evidence must be presented to show what the current child support order is and that the support was not paid. The payor will have the opportunity to present evidence to show that payments were made or whether he/she has the ability to pay. If found guilty of contempt the court will make a ruling as to the amount of arrears and how they will be paid.
Spousal Support/Alimony : Questions regarding the amount of support, duration, and enforcement.
Spousal support, also know as alimony, is an amount paid by one spouse to help support the other spouse. There must be a showing that one spouse is in need of support and that the other spouse has the ability to pay the support. There are many rules about the amount of support that can be effected by other issues in the case such as child support and property division.
Spousal support is calculated based upon the needs of the recipient and the ability of the payor to pay support. The general guideline for spousal support is 30%-35% of the difference in the parties’ income, but can be different based upon many factors and the financial situation of the parties.
In most situations, the answer is no. However, there are situations where the Court will consider awarding both child support and alimony. These are usually in higher income families where there exist tax benefits to blending alimony and child support. There also exist situations where the court may order child support, then alimony. It is important to calculate the length of child support and the length of alimony to determine which duration is longer and make provisions for those circumstance where a party is eligible for one type of support after the other type of support ends.
The length of alimony is based upon the length of marriage. For marriages lasting 5 years or less, the length of alimony is 50% of the length of marriage; for marriages lasting 5-10 years, the length of alimony is 60% of the length of the marriage; for marriages lasting 10-15 years, the length of alimony is 70% of the length of the marriage; and for marriages lasting 15-20 years, the length of alimony is 80% of the length of the marriage. For marriage lasting 20 years or more, considered long term marriage, the length of alimony can go considerably longer and have no specific durations as the others do. Any alimony order will stop upon the death of either party, remarriage of recipient, or the payor obtaining retirement age as defined by the Social Security Administration. The payments may stop or be modified if the recipient is cohabitating.