Frequently Asked Questions About Divorce

What should I do before filing for divorce, or when I’m expecting my spouse to file?

You should be careful about making promises to your spouse about custodial arrangements or finances, without first seeking legal advice. Contact me (781-444-9344, bob@robertsmart.net) to set up an initial consultation (the first half hour is free). I encourage my clients to gather up copies of important financial documents, such as tax returns, bank, credit card, and investment account statements, business ledgers, and employee benefit materials, before divorce proceedings begin, to protect against the spouse who may hide or “lose” key documents.

Can I get into court quickly to deal with an emergency?

Yes. The Probate Courts can hear emergency matters on an “ex parte” basis. This means you and your lawyer can secure a hearing before a judge, on a motion for temporary orders, before giving notice to the other party. Call me at 781-444-9344. When a temporary order is issued without notice, the other party will subsequently be given notice and a chance to get into court to seek changes to the order.

What are the grounds for divorce?

The statutory grounds for divorce are adultery, impotency, desertion, intoxication, cruel and abusive treatment, failure to support and maintain, and irretrievable breakdown of the marriage. Most divorces in Massachusetts are now brought on the basis of “irretrievable breakdown” (also called “no-fault”).

Who can file for divorce in the Massachusetts courts?

It depends on where the “cause” for the divorce occurred, where you were married, when you have lived together in Massachusetts, and where you live now. The statute says “A divorce shall not, except as provided in the following section, be adjudged if the parties have never lived together as husband and wife in this commonwealth; nor for a cause which occurred in another jurisdiction, unless before such cause occurred the parties had lived together as husband and wife in this commonwealth, and one of them lived in this commonwealth at the time when the cause occurred.” The next section says “If the plaintiff has lived in this commonwealth for one year last preceding the commencement of the action if the cause occurred without the commonwealth, or if the plaintiff is domiciled within the commonwealth at the time of the commencement of the action and the cause occurred within the commonwealth, a divorce may be adjudged … unless it appears that the plaintiff has removed into this commonwealth for the purposes of obtaining a divorce."

How long does it take to get divorced in Massachusetts?

Typically, it takes between six months and a year and a half to get a final judgment of divorce. If the parties reach an agreement, and commit it to writing, they can get divorced sooner, by filing a joint petition for divorce, which by law is supposed to get a speedy hearing. After the hearing and issuance of a “judgment nisi”, the divorce automatically becomes final in 120 days.

Should I see a lawyer or go to mediation?

I often recommend mediation, and have worked with many divorce mediators over the years. But in my experience you are best served by consulting with an attorney before starting mediation. A good lawyer will help you to go into the mediation with realistic goals and a sound strategy for protecting your interests.

Can I get divorced without a lawyer, and without engaging the services of a mediator?

Yes, but there is some truth to the adage “A person who represents himself has a fool for a client”. Emotional involvement and lack of experience with divorce law and procedure can work to your disadvantage. In my practice, I find that some clients want me to handle virtually everything, while others just need some guidance and can handle much of the work themselves. Call me to set up a consultation, and we’ll talk about what approach will work best for you.

Do unmarried parents have rights in the Probate Courts? 

Yes, under Chapter 209C, which states: “Children born to parents who are not married to each other shall be entitled to the same rights and protections of the law as all other children.” Either party may go to court to seek an adjudication of paternity, where it is not acknowledged, and both parties have the right to seek relief in court on child support, custody and visitation issues.

How is the amount of child support determined?

Massachusetts has recently amended its Child Support Guidelines. These Guidelines establish presumptive weekly support amounts which are tied to the parties’ incomes, and which consider the number and ages of the children. The Judges have some discretion to vary the amounts set by the Guidelines.

When is alimony awarded?

There are no formal guidelines for payment of alimony. With relatively short term marriages, where the income of the higher earning spouse is low, or not significantly higher than the other spouse’s income, or where there are young children and the non-custodial spouse does not have the ability to make payments in excess of what the Child Support Guidelines require, alimony is not normally awarded. In other cases, usually involving long-term marriages, alimony can be awarded. The amount and duration of alimony, and the circumstances under which it can be changed, are often hotly contested issues. An experienced lawyer can advise you on alimony issues.

What are the rules regarding division of property?

In Massachusetts, the judges have discretion to “equitably divide” the parties’ property. This does not necessarily mean the division will be equal. Before a judge can issue a property division order, he or she must make findings about length of the marriage, conduct and contributions of the parties, age, health, occupation, amounts and sources of income, liabilities and needs of each party, and a number of other statutory factors.

What property is subject to “equitable division” by the court? 

Vested and non-vested benefits, rights and assets of many different kinds and descriptions are considered to be “marital property” and are subject to equitable division. Jointly held property, assets for which there is a named beneficiary, individually owned property, and inheritances can be determined to be marital property. Parties may be able to “protect” certain assets from equitable division by entering into a pre-nuptial agreement, when that agreement is fair and reasonable, both at the time it is signed and at the time of the divorce.

To schedule an initial consultation, call Robert T. Smart, Jr., Esq. at 781-444-9344, or contact him by e-mail at bob@robertsmart.net.

November, 2008

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