Frequently Asked Questions: Massachusetts Divorce
Lynch & Owens are South Shore divorce attorneys and family law attorneys who practice primarily in Plymouth County and Norfolk County, Massachusetts. The following provides answers to some frequently asked questions about the divorce in Massachusetts:
If the cause of the divorce occurred outside of Massachusetts, the plaintiff must reside in Massachusetts for at least one year prior to the filing of the action. If the cause of the divorce occurred within Massachusetts, at least one of the parties must be a Massachusetts resident. Where the cause of action occurred and what constitutes “residency” can each be major factors in determining when a party may file for divorce in Massachusetts. Check out Attorney James M. Lynch’s blog on domicile and divorce jurisdiction in Massachusetts for a complete review of this issue.
In a no-fault divorce, the parties are not required to prove which party was at “fault” for the divorce; they are only required to prove that the marriage has broken down irretrievably or that the couple has irreconcilable differences. In a “fault” divorce, the Plaintiff must prove that the Defendant has committed a wrong that allows the Plaintiff to get a divorce. Many people think that a fault grounds divorce gives the Plaintiff an advantage in getting property division or alimony; however, this is not generally the case. The Court must consider the same factors to decide these issues in both fault and no-fault divorces, and seeking a divorce on “fault” grounds generally creates needless complication compared with a no-fault filing.
If the divorce is uncontested, the two parties may file a Joint Petition for Divorce with a Separation Agreement and an Affidavit of Irretrievable Breakdown of Marriage. The Separation Agreement must address all aspects of the divorce. If the divorce is contested, the divorce proceeding is started by filing a Complaint for Divorce and serving a summons and a copy of the complaint on your spouse. The summons will be provided by the court after you file the divorce complaint. There is a filing fee for both types of divorce that can be waived if the filing party is indigent.
“Grounds” for divorce is the “reason” for divorce. The state will only allow a divorce for a recognized reason as set forth by statute. The most common reason for divorce is “irretrievable breakdown of the marriage.” Irretrievable breakdown is also called “no-fault divorce.” This means that you can get divorced if you simply no longer want to be married. In addition, Massachusetts has fault grounds for divorce including:
What is the difference between “merging” the separation agreement with the judgment of divorce versus having it “survive” as an independent agreement in MA?
If a portion of an agreement merges into the divorce decree, the merging portion can be modified if there is a substantial change in circumstances following the entry of judgment. Portions of an agreement that do not merge are generally said to “survive”. Surviving provisions are said to have independent legal significance. In common language, the merged portions of an agreement are modifiable after the entry of judgment, while the surviving (or non-merged) portions cannot be modified. It is important to note that the division of marital assets generally survives the judgment of divorce, and is not modifiable at a later date, while child-related issues generally merge, and can be modified after the judgment. In most cases, the question of “merger vs. survival” occurs in connection with the alimony provisions of the agreement.
Yes. A separation agreement is not enforceable without approval by a Judge. The state is considered to be a party to the marriage and must approve the terms of a divorce. The state is represented by a Judge, who must determine that the separation agreement is “fair and reasonable” before the divorce can be final. Until the agreement is approved by a Judge, the enforceability of an agreement remains in question.
Yes. If the parties agree on all issues, a simplified divorce procedure is available. An action for divorce based upon an irretrievable breakdown of the marriage may be commenced by filing a joint petition for divorce. The joint petition must be accompanied by a sworn affidavit alleging that the marriage has suffered an irretrievable breakdown along with a separation agreement and sworn financial statements executed by each party. The parties can request a hearing date on the same day the papers are filed.
An uncontested divorce is a divorce in which both parties have agreed on all issues and put the agreement in writing for the Judge to approve. If there is even one issue that is not agreed upon, the divorce is still contested. If the parties have agreed on all issues before the divorce action is filed, they may file a joint petition for divorce. Otherwise, the divorce will start as a contested divorce and may be amended to uncontested when the parties reach an agreement.
Yes, there is a court hearing involved in an uncontested divorce. The state is considered a party to every marriage and must participate in every divorce. The state is represented by a Judge who must find that the settlement is fair and reasonable to all parties, and that children are adequately protected. In addition, the Judge must protect the state in the event that one party receives public assistance. In most cases, an uncontested divorce hearing is quick and routine. Indeed, if one party cannot appear at an uncontested hearing, the Court may accept an affidavit in lieu of that party’s appearance.
Because Massachusetts allows for divorce on the grounds of irreconcilable differences, it generally not possible for one party to prevent the divorce from eventually occurring. However, the specific timing and terms under which parties are divorced are often subject to significant variation depending on the level of agreement and cooperation between the parties.
- the length of the marriage
- the conduct of the parties during the marriage
- the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties
- the opportunity of each for future acquisition of capital assets and income
- the contribution of each of the parties in the acquisition, preservation or appreciation in value of their respective estates
- the contribution of each of the parties as a homemaker to the family unit.
Equitable division does not mean an equal division of property, although an equal division of property is common. Equitable division means that the property will be divided fairly. Judges and attorneys broadly agree that the most important factor in determining the division of assets is the length of the marriage. Following a short-term marriage (15 years), a judge is often more inclined to divide the assets equally. Medium-term marriages of 5 to 14 years frequently present a challenge to a judge that can require close scrutiny of the other factors set forth above.
Debts are treated as “negative” assets and are divided as part of an equitable division of property. This means that the court will consider the same factors in allocating debts as it does in allocating other assets. Any liability that is secured by an asset usually becomes the obligation of the person who receives the property. An example is that a mortgage is secured by real estate and usually becomes the obligation of the person who lives in the real estate. An auto loan usually becomes the obligation of the person who has use of the car. Credit card debt is usually unsecured debt and is part of the general division of assets. Although courts purport to assign liabilities in the same manner as they do assets, many divorce practitioners believe that the allocation of liabilities can be less predictable – and subject to greater variation on a case-by-case basis – than the division of assets in a typical divorce.
Retirement funds typically fall into two categories: (1) acquired before the marriage; or (2) acquired during the marriage. In a short or medium-term marriage, retirement funds acquired before the marriage may not be subject to division in a divorce. Retirement funds acquired during the marriage are generally subject to division and treated as an asset of the marriage. There are no hard and fast rules regarding the division of retirement funds, however, and a skilled attorney may convince a judge to depart from the conventional wisdom in a given case. Retirement funds may require a special court order to divide the asset pursuant to a divorce. If so, the court will issue a Qualified Domestic Relations Order (“QDRO”) to divide the asset. The QDRO must be prepared by the parties and the retirement plan administrator may need to be consulted.
Yes. Massachusetts permits either spouse to obtain a divorce based on irreconcilable differences, even if the other spouse objects. Although cooperation between spouses does tend to make the divorce process easier and less expensive. Without cooperation, the divorce is a contested matter that takes longer and subsequently becomes more expensive and procedurally challenging. Ultimately, a trial may be required if one spouse will not agree to proceed with the divorce; however, even a highly resistant spouse cannot generally stop a divorce from moving forward in the end.
A divorce will typically become final ninety days after the Judge issues a divorce decree. Prior to becoming “final”, the judgment is referred to as the “Judgment of Divorce Nisi”. After this waiting period, the Court will issue a final divorce decree called a “Judgment of Divorce Absolute”. May practitioners consider the 90-day waiting a period an anachronism that causes needless confusion. The so-called “Nisi period” only affects the parties’ marital status; all of the substantive terms set forth in the Agreement are effective immediately upon the entry of “Judgment of Divorce Nisi”, and can be enforced through contempt proceedings if one party fails to obey the terms of the Agreement or Judgment within the 90-day period. However, the Nisi period is important, inasmuch as a party cannot re-marry prior to the expiration of the period, and parties remain married for state and federal tax purposes if the Nisi period overlaps with the last day of the tax year (i.e. December 31st). For this reason, most Massachusetts attorneys include a separate waiver of each party’s estate claim against the other spouse, in the event one party dies prior to the end of the Nisi period. Without such a waiver, a party may be entitled to a share of the former spouse’s estate, even after their divorce agreement has been reviewed and approved by a judge.nnIf the parties have an uncontested divorce with a separation agreement, the Judge must first approve the agreement which then has an additional thirty day waiting period. In these cases, the divorce generally becomes final 120 days after the parties appear before the Judge. However, this may be delayed a few more days as the waiting periods start when the Judge signs the decree and not when the parties appear before the Judge. The waiting periods allow the parties an opportunity to file an appeal (only in contested divorces), reconcile, or notify the court if they believe the other party fraudulently hid assets or income.
A modification can occur to correct mutual mistakes. In addition, “merged” issues relating to alimony and children (including parenting time and child support) may also be modified, if the moving party can demonstrate that a material change in circumstances occurred. Conversely, the division of marital assets generally cannot be modified after the final Separation Agreement has been approved by the Judge. Other than issues relating to children and alimony, post-decree modification usually does not occur unless there is a provision in the Separation Agreement to do so, or if the other party committed fraud, used undue influence, or made a misrepresentation. It is important to note that the so-called 90-day “Nisi period” generally has no effect on the modifiability of an Agreement or Judgment, where the effect of the Nisi period is limited to each party’s marital status.
An attorney is not required for you to obtain a divorce; you have the right to represent yourself. Visit our Official Forms: MA Divorce and Family Law page to see some of the required documents. As the SLynch & Owens Divorce Series illustrates, however, you may be putting yourself at a serious disadvantage if you choose to represent yourself instead of retaining counsel. Unless you and your spouse have no significant assets, children or unsettled issues, a divorce can become very complicated. An experienced family law attorney can be of great help during every stage of divorce from filing to litigation, and can significantly affect the outcome of contested divorce proceedings. At a minimum, you owe it to yourself to seek out an attorney for a free one-hour consultation before you choose to proceed alone.
Usually, each party pays his or her own legal fees and expenses in a divorce. However, if your spouse has sole control of the family finances, and you have no access to funds to pay legal fees, you have a right to file a motion with the Court seeking a release of funds with which you can pay your legal fees. At the end of the divorce, attorney fees may be treated as a liability incurred during the marriage and allocated between the parties as part of the property division. Moreover, the court can order legal fees to be paid by a party when the court believes that a party has behaved improperly such as failing to obey a court order (contempt of court). However, an order requiring one party to pay the legal fees of the other due to misconduct is rare; it most instances, each party is ultimately responsible for paying the legal fees incurred by his or her attorney.
If an order of the court is violated, a contempt action can be brought against the party who violated the order. In a contempt action, the court can fashion a remedy to correct the behavior in the future or to punish the violation. In order for a court to find a party in contempt, there must be a clear and unequivocal order and a clear disobedience by the party. While contempt is available when any order is violated, contempt for custody or visitation orders may be treated differently. The court may not punish a person who fails to exercise visitation, for example. However, a parent who refuses to exercise visitation may eventually be subject to an increase in child support or a reduction in parenting time. If a parent interferes with the other party’s parenting time, however, the consequences can be severe, ranging from emergency orders to criminal kidnapping charges in extreme circumstances.
Yes. Typically, if physical custody is granted to one parent, then the other parent will pay child support to the custodial parent based on the Massachusetts Child Support Guidelines. However, a traditional physical custody award assumes that the child spends approximately one third of the time visiting the other parent. If the time spent with parents varies from one-third with the visiting parent, and two-thirds with custodial parent, then child support may deviate from a strict application of the Guidelines. The Guidelines call for a different formula when time spent with the child approaches an even split. Moreover, an argument can be made that failure of a non-custodial parent to exercise his or her parenting time may result in an increase in child support obligations, due to the additional child-related costs borne by the custodial parents.
In the vast majority of cases, remarriage has no effect on a prior child support order. However, if a new spouse enables a parent to reduce his or her employment income, or provides a drastic change in lifestyle for the parent, then the new spouse’s financial means may become an issue. Judges are generally quite reluctant to modify an existing child support based on a parent’s subsequent remarriage. If a newly married parent seeks to take advantage of his or her new spouse’s finances to obtain to change child support, however, a Judge is more likely to scrutinize the new spouses finances.
When the Plaintiff files a complaint for divorce, and when the Defendant is served with the Complaint and Summons, each party is subject to an automatic financial restraining order pursuant to Massachusetts Supplemental Probate and Family Court Rule 411. This order prohibits each party from transferring money except to pay usual and customary living and business expenses or to pay their attorney. It also prohibits parties from incurring debt in their spouse’s name, or changing life or health insurance policies. Violation of this order may be punished as a contempt of court.
Generally, no. The courts will only terminate parental rights when there is another person adopting the child. Such an adoption generally will not occur without the consent of the parent receiving child support. In rare cases, a step parent may agree to adopt a child, thereby releasing a biological parent from his or her child support obligation. Termination of parental rights is a rare and irreversible process, however, that courts generally avoid, absent severe abuse or neglect.
It depends. Any attorney can draft a Separation Agreement for an individual. Until recently, however, attorneys were prohibited from “ghostwriting” legal pleadings on behalf of unrepresented parties. However, Massachusetts has recently adopted a limited appearance representation rule for lawyers (LAR) which allows ghost writing as long as the document reflects that it was drafted by an attorney. Under this rule, clients can hire attorneys to draft legal pleadings that the client will file on his or her own behalf in court. Only attorneys who have been trained under this rule may accept LAR clients. All of the attorneys at Stevenson, Lynch & Owens have been trained to accept clients on a limited appearance basis. The limited appearance rule is not effective in all courts in Massachusetts, however, and our attorneys reserve the right to decline limited representation cases.
In a divorce, within forty-five days after service of the Complaint and Summons on the Defendant, both parties must provide to the other three years of records (tax returns, bank statements, investments statements, insurance information, etc.) pursuant to Supplemental Probate and Family Court Rule 410. These documents must be produced even if the opposing party does not specifically request them. If you do not have these documents, you must exercise all reasonable efforts to obtain the documents. Failure to provide these records can result in court sanctions. The rule explaining this may be found at the state’s trial court website. This rule does not prevent parties from engaging in additional discovery.
Every person who appears in a divorce, child support or alimony proceeding that involves money or finances must fill out a financial statement. If your gross (pretax) income is less than $75,000.00 per year you must fill out the short form. If your income is $75,000.00 or greater, you must fill out the long form. Your financial statement is likely to be more accurate if you complete the form in advance of any court hearing. Financial statement Forms including schedules for self-employment and rental income, and instructions for filling out the forms may be found on our Official Forms: MA Divorce and Family Law Page.
If you have children under 18, and are getting divorced in Massachusetts, you must take the parent education class. The course is designed to help parents understand the challenges children face with parents in two households. Information on this class including a list of providers can be found at the state’s trial court website. Check out this blog for a rundown to the new rules for the parent education class that went into effect on May 1, 2016.
Prenuptial agreements are generally enforceable in Massachusetts. If there was full financial disclosure and the agreement is free of fraud and coercion, the agreement like likely be enforced by a Court. However, such an agreement cannot contract away rights of children. Property division and alimony can be addressed in a well-drafted prenuptial agreement, subject to approval by the judge. A poorly drafted prenuptial agreement may be found to be unenforceable, however, making the use of a qualified attorney especially important. For three tips on drafting prenuptial agreements, check out this blog.
Rehabilitative alimony is the periodic payment of support to a spouse or former spouse for a definite period of time based upon the expectation that the recipient will become economically self-sufficient after the passage of time. An example is payment of temporary alimony to allow the recipient spouse to obtain an education or job training.
Reimbursement alimony is available for marriages of less than 5 years to compensate a spouse or former spouse for economic or non-economic contributions to the financial resources of his or her former spouse. An example of such alimony is when one spouse temporarily supports the other while the second spouse pursues an advanced degree.
Transitional alimony is available for marriages of less than 5 years, to transition the recipient spouse to an adjusted lifestyle or location as a result of the divorce. This type of alimony can be used to bridge the gap between being married and a single life, such as when a spouse moves out of state following a divorce.
No, courts generally do not scrutinize the exact manner in which a parent spends child support. So long as you provide shelter, food, and clothes for the child, a Judge generally will not challenge a parent’s spending patterns. However, a parent who seeks child support in excess of the Massachusetts Child Support Guidelines may be expected to detail why an order under the Guidelines is insufficient.
The best remedy to avoid the fraudulent concealment of assets by a spouse is to file a divorce complaint and serve your spouse. Upon filing an action for divorce, an automatic restraining order issues, constraining each party’s use of marital assets. The order is binding on the Plaintiff upon filing the divorce and binding on the Defendant upon service of process. This means that once the initial divorce papers are served on a spouse, that spouse is prohibited from transferring or hiding assets except for ordinary living expenses and to pay their attorney. If they want to use assets for another purpose, they will generally need the written consent of the spouse or an order of a Judge. Until you file a complaint for divorce, there are few if any constraints on how your spouse handles marital assets.
Yes, the complaint for divorce has a specific section which allows you to revert back to your maiden name following the entry of judgment, if you wish to do so. If you would like to resume your maiden name, it is important to do so through your divorce, where a stand alone Petition to Change Name can be a time-consuming process.
A former spouse may be covered under an individual’s health insurance, so long as plan rules specifically provide former spouse coverage. Unfortunately, an increasing number of employers are no longer providing medical and dental coverage for former spouses beyond an expensive rider to the policy; through COBRA; or through a separately purchased plan through the employer. A failure to consider the cost and availability of post-divorce medical and dental insurance is one of the most common mistakes individuals make during the divorce process. (It should be note that the presence or absence of former-spouse coverage is generally unrelated to the availability of medical insurance coverage for unemancipated children.)
Pets are personal property and are treated as “marital property” by courts in divorce actions. Although specific judges may occasionally consider which party is entitled to receive a cherished family pet, many judges will refuse to enforce “visitation” agreements that parties include in their divorce agreements. If there are children involved in a case, a judge is more likely to seriously consider which party should retain a given pet based on the children’s feelings. A Judge may consider other arguments regarding ownership of an animal: if the pet was a gift to one spouse or was owned by one spouse before marriage, then these factors may be the basis for deciding ownership. As pets are usually viewed as having no “fair market value”, judges frequently struggle to find a basis for awarding “custody” of a pet that each party greatly values for sentimental reasons.
Contempt is short for “contempt of court.” A contempt can occur when there is a violation of a court order. In the context of family law, failure to obey a court order and pay child support or alimony, allow parenting time, provide health insurance, or other violations are considered contempt of court. Enforcement of the court order after violations have occurred can be done by a “complaint for contempt.” A contempt action is a complaint that seeks to enforce the existing court orders; mere dishonesty is not necessarily sufficient for a court to find contempt. In Massachusetts, a person who is filing a contempt action should use the official court form which can be found on our Official Forms: MA Divorce and Family Law Page. A contempt can also occur when a person violates court protocols. Examples of this could be swearing at a Judge, threatening a Judge, or even yelling at a Judge. Bad behavior that occurs in the presence of a Judge can be punished by the Judge immediately and without a trial. Typically, a judge may only find a party in contempt if there is a clear and unequivocal order and a clear disobedience of the order.
Depending on the order, there may be several means of enforcement. One of the most common remedies is by filing a contempt action to seek compliance with the order. In order to successfully pursue a contempt remedy, you must be able to prove a clear court order and a clear violation of a clear order. In addition, you must be able to prove that it was possible for the Defendant to comply with the order. For example, if a Defendant fails to pay child support because he is in jail, he may have a good defense to a contempt action based on his genuine inability to pay. In most contempt actions, the Judge is less concerned with punishment, and more concerned with convincing the Defendant to comply with court orders moving forward. When the Judge finds a person in contempt, the Judge may order attorney fees or sentence an individual to a term in jail.
Are stock options and RSUs considered "income" for child support and alimony purposes in Massachusetts?
Generally speaking, all taxable employment compensation is treated as income for child support and alimony purposes at the time it is received, including proceeds from exercised stock options, restricted stock units (RSUs) proceeds, performance stock units (PSUs) proceeds and other forms of non-salary compensation that are treated as taxable income in the year received. Unvested stock options, RSUs and PSUs that are acquired during a marriage may also be treated as assets subject to division in a Massachusetts divorce, although this depends on numerous factors. Non-taxable forms of employment compensation or benefits, such as employer 401K “matching”, certain forms of profit sharing, and unvested stock awards may or may not constitute income for child support and alimony purposes, often depending on complex issues of fact and law.
Generally speaking, you need a Massachusetts court’s permission to permanently remove your children from Massachusetts during or after a divorce. If your child is less than five years old and was not domiciled in Massachusetts at the time of his or her birth, then the Massachusetts removal statute may not apply to your child. However, Massachusetts retains jurisdiction over a child’s custody for six months following the child’s permanent move out of Massachusetts, and parties must abide by any custody or parenting orders in effect at the time of the move, regardless of whether the removal statute specifically applies.
The answer is no, you should not stop paying child support without a valid court order ending your support obligation, even if your child has turned 18. Massachusetts law permits child support to continue until a child’s 21st birthday if the child remains principally dependent on one or both parents, and the law allows child support as late as age 23 if the child is enrolled full-time in a four-year undergraduate program. A parent who unilaterally stops paying child support without a court order risks being found in contempt if the child is less than 23 years old. Absent a clear old ending child support, an order in effect at the time at the time of the child’s 18th birthday will generally continue in full force and effect after said birthday until the child’s 21st or 23rd birthday.
Grandparent visitation rights in Massachusetts are very limited. Generally speaking, for a grandparent to spend time with a child, the grandparent must have the permission of at least one of the child’s parents. On rare occasions, the court will prohibit a parent from permitting the children to be in contact with a third party (such as a grandparent) if there is a clear risk of harm to the children from the contact. Equally rarely, the court will order visitation between a grandparent and child over the objection of all living parents if the court determines that the child would suffer substantial harm without the visits.
QDROs are special orders entered by judges in divorce cases that enable a judge to divide a qualified retirement account, such as a pretax 401K, without either party needing to “withdraw” funds from the account and incur tax liability. Drafting QDROs can be challenging for divorce lawyers because QDROs include references to complex retirement plan rules and federal law that are often unfamiliar to family law attorneys.
It is important to distinguish between “dishonesty” in the context of the marital relationship (i.e. adultery and lies told between spouses) and dishonest statements and actions during the divorce litigation process. Probate court judges are generally disinterested in punishing adultery or dishonest behavior between spouses during the marriage unless the dishonesty had a specific financial component. However, probate court judges will vigorously punish parties for making dishonest statements directly to the court, or for engaging in child alienation or other types of negative behavior once litigation is underway. In custody cases, judges will punish negative behavior by granting expanding parenting time or custody to the other parent.
Recent changes in federal law mean that former spouse Social Security benefits will no longer become payable based solely on a worker spouse reaching retirement age. These changes change could significantly affect how parties and divorce lawyers negotiate the division of assets and alimony in divorce cases. Moving forward, ex-spouse benefits will only commence when the working spouse retires. In the past, former spouse benefits began when the working spouse reached retirement age, regardless of whether or not the working spouse actually retired. For more information on this complex subject, check out Josey Lyne Payne‘s blog, How Will the Bipartisan Budget Act of 2015 Social Security Changes Impact My Divorce?nn
Please visit our Official Forms: Massachusetts Divorce & Family Law page for the latest divorce and family law forms published by the Commonwealth of Massachusetts.
Divorce mediation involves the parties to a divorce (spouses who want to be ex-spouses) engaging with a neutral professional who does not and cannot advocate for either of the parties. The mediator is trained (sometimes an attorney but this is not necessary) at assisting the parties in reaching necessary agreements and memorializing those agreements for submission to the only court that will grant a divorce in Massachusetts, the Probate & family Court. If the parties are able to reach agreements on all issues required by the court before it grant a divorce (for example, child support and custody, division of the marital assets, etc.) the parties may never have to litigate. For more on divorce mediation vs. divorce litigation, check out Josey Lyne Payne‘s blog, Ever Wonder “What’s the Difference Between Mediation and Divorce”?
Stevenson, Lynch & Owens offers divorce mediation from our Hingham office with highly respected Massachusetts divorce mediator, Justin L. Kelsey. Attorney Kelsey in on the Board of Directors of the Massachusetts Council on Family Mediation and the Family Law Steering Committee of the Boston Bar Association and is a Certified Mediator with the Massachusetts Council on Family Mediation as a Certified Mediator. He is a frequent speaker on mediation and collaborative law issues at MCLE events and is widely acknowledged as a leading voice in the Massachusetts divorce mediation professional community. Contact as (781) 741-5000 to schedule a South Shore consultation with Attorney Kelsey.
Generally speaking, you can change lawyers during a divorce, so long as your prior attorney is being replaced with a new divorce lawyer. (Note that the rules are sometimes different if you intend to represent yourself “pro se“. Some judges will not permit a lawyer to withdraw so a party can proceed pro se if a trial date is looming.) There can be several drawbacks to changing lawyers. First, the problems you perceive with your case may not be your lawyer’s fault. Adverse orders, in particular, often fall outside a lawyer’s control, where not every argument convinces a judge. A more fundamental issue is the loss of “institutional knowledge” in your case when you change attorneys. No matter how carefully your new lawyer examines your case file, there is no substitutes for prior attorney’s memory and experiences. Some degree of information or knowledge is always lost when you change attorneys. Finally, hiring a new attorney generally means you must pay your prior counsel what you owe and come up with a new retainer for the new lawyer.
The answer to this question depends on two issues: what stage your divorce is in and how you define “personal belongings”? If a divorce has been filed, you can take items from the house, but should be mindful that the value of the property you take might be deducted from your share of the marital assets. In most situations, taking clothes, personal affects, and modest amounts of furniture will have little or no impact on the divorce. However, if a party “cleans out” the house, if often forces the remaining party to purchase new essentials, such as furniture and cutlery, and a party taking property in an overly aggressive manner can be perceived as spiteful or unreasonable.nnAll of these concerns aside, the practical reality is that a person who is permanently moving out of a marital home often only gets one chance to take their most precious personal belongings. Where judges tend to view personal property in terms of dollar value, a party leaving the home must think carefully before leaving behind property with sentimental value.
Massachusetts is an equitable property division state, which means that all property owned by either party is subject to division in a divorce. This means that property held in either party’s name can be divided in a divorce. However, this does not mean that all property is automatically divided equally between two spouses in a Massachusetts divorce. In a Massachusetts divorce, the judge will examine equitable factors such as the length of the marriage, the manner in which certain property was acquired, and each party’s contribution to the acquisition, improvement and preservation of an asset. The judge will then divide the property in an equitable manner based on the considerations set forth in Ch. 208, s. 34.nnIn most longer-term marriages in Massachusetts (14+ years), the majority of the property owned in either party’s name will be divided equally between the parties. In shorter-term marriages (less than 5 years), judges will scrutinize property held in one party’s name much more carefully to determine which party was responsible for the acquisition and upkeep of the property. In medium-term marriages (6 to 13 +/- years), the analysis often falls somewhere in the middle, making a qualified divorce lawyer particularly important. In short, the name that property is held in does not necessarily matter in a Massachusetts divorce, but the manner in which marital property was acquired – including who paid for the property and when – often matters quite a lot.nnIn contrast to the equitable division model are the eleven “community property” states, which are Alaska, Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, Wisconsin and Puerto Rico. In these states, only property held in both parties’ names is subject to division. Property held individually (i.e. in one party’s name) at the time of the divorce is considered “separate property” and is not subject to division. In the remaining 39 equitable division states, including Massachusetts, all property owned by either party is subject to division.
In Massachusetts, an individual must wait for the so called “Nisi Period” of between 90 and 120 days before their divorce becomes “final” (also known as becoming “Absolute”), despite both parties appearing at a hearing before a Probate and Family Court judge and entering a binding Separation Agreement. Only after the Nisi period expires can the parties re-marry, file tax returns as unmarried individuals, and avoid having paying a surviving spouse share if they die. The 90 vs. 120 day Nisi Period distinction depends on what type of divorce was filed i.e. contested vs. uncontested.nnFor more information about the 90-Day Nisi Period, check out our full blog on the issue.
Yes, the Massachusetts Alimony Reform Act permits deviations from the ordinary rule that alimony shall not exceed the receiving spouse’s need or 30 to 35 percent of the difference between the parties’ gross incomes established at the time of the order being issued. For more on alimony deviations, read the complete blog here.
Under the Massachusetts divorce statute, “shared legal custody” is defined as the “continued mutual responsibility and involvement by both parents in major decisions regarding the child’s welfare including matters of education, medical care and emotional, moral and religious development.” Meanwhile, the statute defines “sole legal custody” as when “one parent shall have the right and responsibility to make” the same “major decisions” regarding the child. However, finding a precise definition of what rights legal custody embodies is a surprisingly difficult task. Check out Attorney Nicole K. Levy’s blog series on legal custody for a detailed exploration.
Divorce trials are expensive, time-consuming and generally inefficient processes that unfortunately cannot be avoided in every case. The challenges associated with trial include the extreme time and resources required to prepare for trial, the extraordinary legal costs associated with trial, the lengthy delay in obtaining a ruling, and the lack of control over the case’s outcome. For a complete exploration of the divorce trial process, check out Attorney Josey Lyne Pyne’s blog.
It is imperative that you feel 100% comfortable with the attorney responsible for your divorce case. Obvious questions to ask your attorney during your initial (hopefully free) consultation include: how much does the attorney charge per hour, how much is his or her standard retainer, and what does the lawyer believe is the likely outcome of your case based on the facts you provide. Equal important are more nuanced questions such as: does the attorney believe your expectations are reasonable, does the attorney believe he or she can effectuate your goals, and how would the attorney handle the most challenging parts of your case. For a divorce mediator’s perspective on the questions clients should ask before hiring a family law attorney, check out this blog from attorney and divorce mediator Justin L. Kelsey.
The vast majority of divorce cases are resolved by settlement rather than a contested trial. How divorces are settled is a complex subject. Luckily, Attorney Josey Lyne Payne does this subject justice in this entry of the SLynch & Owens Massachusetts Divorce Series, which provides a detailed review of the negotiation and settlement process in a Massachusetts divorce.
Massachusetts law does not presumptively favor shared physical custody or 50/50 custody plans. Although some states have recently trended towards favoring shared physical custody as a matter of law, Massachusetts has not moved in this direction yet. A recent bill, the Massachusetts Child-Centered Family Law, sought to make shared physical custody presumptive. However, after numerous amendments, the bill eventually passed the House in a much different form, only to fail to receive a vote in the senate. For the time being, Massachusetts Probate and Family Court judges retain complete discretion to enter custody orders based solely on the best interest of the child standard.
Yes, parties who execute a preliminary divorce agreement, commonly known as “memorandum of understanding”, can be bound by its terms, if the instrument indicates that the parties intended for the agreement to be binding. Such agreements are often helpful for parties who have reached an “agreement in principle” on major issues, but still need to work out the final details of the divorce. However, as detailed in this recent blog, parties should understand that such agreements can be binding, even if a party subsequently changes his or her mind.
The Alimony Reform Act [Ch. 208, s. 49(d)] provides that “[g]eneral term alimony shall be suspended, reduced or terminated upon the cohabitation of the recipient spouse when the payor shows that the recipient spouse has maintained a common household, as defined in this subsection, with another person for a continuous period of at least 3 months.” Accordingly, a party paying alimony to a former spouse is eligible for a suspension, reduction or termination of alimony if he or she can prove his or her former spouse is cohabitating with a new romantic partner. As detailed in this blog, proof of cohabitation requires a party to the former spouse shares a “common household” with the new romantic partner. Methods of proof include social media, photographs, private investigator testimony or subpoenaed records.
In Massachusetts, child support and alimony orders are based on the respective earning capacities of the parties. If a party is underemployed, or fails to make reasonable efforts to find employment, a judge may attribute income to that party, even if the party’s actual income is significantly lower than the attribution. As detailed in this blog, judges consider numerous factors when determining whether to attribute income, including whether a party is earning less than he or she could through reasonable efforts, if the party became unemployed or accepted lesser employment voluntarily, and how long the party has been out of the workforce.
In Massachusetts, a future inheritance is generally considered a “mere expectancy interest”, which means that most future inheritances cannot be divided pursuant to the division of assets. However, as detailed in this blog, a future inheritance can still affect the final division of assets where it represents one party’s opportunity to acquire income and capital assets following the divorce. Moreover, interests in trusts and family gifts may be divided under some circumstances. Read more here.
In general, personal injury settlements are marital assets that can be equitably divided pursuant to the division of assets in a Massachusetts divorce. Indeed, as detailed in this blog, even a future interest in a potential personal injury settlement can be divided as an asset in a Massachusetts divorce. Read more here.
How can a party enforce a Massachusetts child support or alimony order that the other party refuses to pay?
In Massachusetts, Probate and Family Courts have broad powers to enforce child support and alimony orders when a party files a Complaint for Contempt. As detailed in this blog reviewing Complaints for Contempt for violations of financial orders, the powers of the court include incarcerating a non-paying party, order the payment of legal fees and costs, and assessing interest against a non-paying party. Read more here.
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Whether you need aggressive representation in a child custody dispute or a complex financial case, please call us at (781) 741-5000. An attorney from our office will consult with you and evaluate your potential claim at no charge after you call to schedule an appointment. We will help you navigate your legal issue with care, diligence and strong, cost-effective client service.
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Please visit our Frequently Asked Questions: Divorce in Massachusetts page, the Lynch & Owens Divorce Series by Josey Lyne Payne, or the Lynch & Owens Family Law Blog for more information about divorce and family law in Massachusetts.