Massachusetts divorce lawyer Carmela M. Miraglia reviews the process of filing and serving a Complaint for Divorce in Massachusetts.
In this edition of the Lynch & Owens Divorce Series, I will review the process for filing and serving a Complaint for Divorce in Massachusetts. To start any action for divorce a Plaintiff must complete the appropriate Complaint for Divorce, which is a standard form created by the Commonwealth of Massachusetts to be used in the respective Probate & Family Courts. Which form the Plaintiff completes depends on which type of divorce they are filing. In Massachusetts, the most common is a Complaint for Divorce Pursuant to G.L. c. 208, Section 1B – Irretrievable Breakdown (the “Complaint”). The official form in Massachusetts can be found on our Massachusetts Family Law Official Forms page.
Once the Complaint form is completed, the Complaint is filed with the Probate and Family Court in the proper jurisdiction, along with other requisite documents (more about these documents in another blog post). Filing involves delivering the completed paperwork to the court and paying the filing fee. The party that initially files the Complaint is the “plaintiff.” Once the plaintiff files their paperwork with the proper court, the Court then adds the divorce case to a docket and the case is assigned to a judge. If you file by mail, the processing time for a typical Complaint for Divorce is between 1 and 3 weeks. If you file in person, a Complaint can sometimes be processed the same day, depending on staffing levels at the Court.
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After you file the Complaint, you will get a Summons and Tracking Notice. You must “serve” a copy of the Summons, a copy of the Complaint that was filed with the court, and a copy of the Tracking Notice on your spouse. “Service of Process” is the way you deliver papers to the person required to respond to the Complaint; that person is referred to as the “defendant.” The purpose is to advise the defendant, in writing, that there is a case, what the case is about, what the defendant must do and when, if there is a court hearing scheduled, and when and where to come to court.
In Massachusetts, one generally hires a sheriff or constable to serve the defendant for a fee of $50 to $100. When the sheriff or constable serves the defendant, the defendant is given a copy of the summons, the Complaint and the tracking notice. The sheriff or constable then fills out the second page of the summons, called the “Return of Service”. The Return of Service is proof that the defendant was served. Once this is completed, the original summons (not a copy) must be filed with the court. It is your responsibility to make sure the original summons is filed with the proof of service. In some cases, a defendant may be willing to accept service without the use of a sheriff or constable. If this is the case, the defendant must sign the summons where it provides “Acceptance of Service” before a notary public.
If a defendant voluntarily accepts services, the burden remains on the Plaintiff to file the signed and notarized return of service with the court. You have 90 days from the day you filed the Complaint to serve your spouse. If you are not able to serve in that time, you must return to the court and request a new Summons (for a fee), which will provide you an additional 90 days to make service.
A defendant who has been served with a Complaint and summons has officially received notice of the divorce action. After being served, the defendant is subject to the automatic restraining order pertaining to the sale or liquidation of assets. Each party has 45 days from the date to service to provide mandatory self-disclosure in the form of copies of tax returns, bank statements and other financial documents extending back three years. Each party must also be prepared to produce a sworn financial statement, which can be demanded as soon as ten days after service is made.
About the Author: Carmela M. Miraglia is a Massachusetts divorce lawyer and Massachusetts family law attorney for Lynch & Owens, located in Hingham, Massachusetts.
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