Massachusetts divorce lawyer Josey Lyne Payne reviews the issues decided in a Massachusetts divorce case.
In this edition of the Lynch & Owens Divorce Series, I will discuss the main issues that a Probate and Family Court judge will address in a Massachusetts divorce. Initially the Court must determine the “grounds” for a divorce. Grounds are the legal reason(s) why the marriage has failed and thus the marriage is eligible to be legally dissolved. In Massachusetts, there are seven fault grounds (where the Court finds that a marriage has failed due to the fault of one of the parties), and a no-fault ground (where the Court finds that the marriage has failed, but not due to any fault by either party) – grounds will be explored in later posts in the series. Since the advent of no-fault divorce roughly 40 years ago, the use of “at fault” grounds in divorce actions has become heavily disfavored by judges, attorneys and litigants.
Aside from the grounds being decided, there are several other issues that must be decided before a judgment of divorce can occur. Some of these issues are:
- custody of children (both legal and physical)
- child support for unemancipated children (including education)
- visitation with the children (otherwise known as a Parenting Plan)
- division of marital assets (retirement assets, bank accounts, stocks, etc.)
- alimony (also known as spousal support or maintenance)
- division of personal property (such as the car(s) or furniture)
- what will happen to any real estate
- who gets to live in the marital home
- division of debts (credit cards, living bills such as utilities)
- name change (if a party decides to resume her maiden name)
- if applicable, Abuse Prevention orders
These issues may be resolved and agreed upon by and between the parties themselves and then incorporated into the Divorce Judgment, or if the parties fail to agree on any or all of the issues, the Court will decide the issues in dispute after a trial in which the parties have an opportunity to present evidence to support the judge’s decision. (Notably, more than 95% of cases end in settlement rather than through trial.)
Make no mistake, the issues that must be decided are complex and hiring independent counsel is advisable. Every situation is different, just as every family is different. A party may hire a lawyer to assist and advise them both with the divorce itself and with mediation, if the parties decide to mediate their divorce. It is important to understand that a mediator is a neutral body that facilitates the conversation(s) between the parties. A mediator, who may be an attorney, is not your attorney and cannot legally advise you. They may discuss the law with you during the mediation process in an educational or general information way, but they are not advocating for or representing your interests. To protect your interests you should consult a lawyer independently.
About the Author: Josey Lyne Payne is a Massachusetts divorce lawyer and Massachusetts family law attorney for Lynch & Owens, located in Hingham, Massachusetts.
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