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By Haskell A. Kassler and Joyce G. Perocchi
Prior to the recent case of Davidson v. Davidson, there was little or no consistency in the manner in which courts dealt with efforts to depose or involve the parents of one of the spouses in an ongoing divorce action. Some courts allowed such discovery to take place, on the theory that G.L. c. 208, § 34, mandates that the court consider the estate of the parties and the opportunity of each party to the future acquisition of capital assets and income. Other courts felt that it was overly burdensome to require parents of the parties to produce information with regard to their finances, on the theory that such discovery would constitute an invasion of privacy and because future expectancies are highly speculative in nature.
With Davidson the Appeals Court has shed some light on the question.
In Davidson, the court dealt with the treatment and relevance of inheritances and expectancies in actions brought pursuant to G.L. c. 208, § 34. In that case, the husband possessed an expectancy under his mother’s will, as well as a remainder interest in an irrevocable trust established by his deceased father.
The beneficiary of the testamentary trust was the husband’s mother, and the trustees had unlimited discretion to invade principal to satisfy the mother’s needs. The decision, written by Judge Warner with surgical precision, articulates the concept that marriage is analogous to a business partnership. As a result, G.L. c. 208, § 34, contemplates the division of assets at the time of the dissolution of the partnership.
With this concept as its foundation, the court determined that the irrevocable remainder interest, “while it may have been at the outer limits,” represented an item of the divisible marital estate. The expectancy under the mother’s will, however, was found not to be marital property subject to division. The court did note, however, that unlike the laws in some states, the Massachusetts equitable distribution statute does not specifically exclude inheritances or expectancies.
While our statute is intended to cover “all or any part of the estate of the other,” no extraordinary circumstances were presented in Davidson to allow the expectancy to be considered as part of the marital estate pursuant to G.L. c. 208, § 34.
While Davidson provides judicial guidelines for a heretofore troublesome question, the case does not necessarily dispose of all the related issues. First, the court states that while the bare expectancy presented in Davidson was not divisible as a marital asset, an expectancy may be considered as a divisible asset in “extraordinary circumstances.” Facts that would constitute “extraordinary circumstances” are not described, nor does the court indicate whether the phrase relates to a particular situation or, rather, to specifics relating to the settler/testator. As a result, practitioners should scrutinize their cases to determine if an argument can be made for the existence of an “extraordinary circumstance.”
Several other difficult situations are identified in Davidson, but reserved for full treatment at a later time. One such situation is where the parties separate, live independent lives for a number of years and finally, after the passage of a length of time, decide to “formalize” the dissolution of their marriage. During the lengthy period of separation, one party’s parents both die, leaving that party substantial inheritances. In another situation, a complaint is filed and during the pendency of the litigation the husband’s closely held corporation is sold for a sum far in excess of the value at the time of separation and for more than either party had ever anticipated.
The proper date of valuation is critical. Valuation difficulties arise not only in dramatic situations such as those posed above, but also in the “garden variety” of cases that may involve a marital home or a pension plan. The court indicates that it is unlikely to adopt a hard and fast rule on valuation applicable to all cases. Although the property subject to division is generally valued as of the date of the order of division, the court states, “we think the development of law in this respect is best left to a case-by-case analysis.”
The Appeals Court also reminds us that when a trial court is making its findings under section 34, the court must consider “the opportunity of each for the future acquisition of capital assets and income,” and therefore the statute mandates a look into the future.
Although a future expectancy or inheritance may not be considered part of the present marital estate so as to render it subject to division as a marital asset, it may be considered by the trial court “in determining what disposition to make of the property which is subject to division.
Potential inheritances remain significant and relevant issues for the trial justice. As such, they are entitled to be explored through reasonable pretrial discovery.
Davidson does not suggest that it is “open season” on each and every relative and friend of a litigant. However, Davidson clarifies the existing law by acknowledging that the portion of section 34 dealing with the opportunity of future acquisition of capital assets or income must involve consideration of expectancies and inheritances. The court also notes that:
[in] any event, the expectancy might be considered by the judge, having been mindful of the evidentiary constraints which should deflect secondary considerations, under the Section 34 criterion of opportunity of each for future acquisition of capital assets and income in determining what disposition to make of property which is subject to division.
Such a statement reaffirms the Supreme Judicial Court’s ruling in Rice v. Rice, wherein the likelihood of a substantial family inheritance was said to be a proper matter for the trial court to consider in dividing the marital property. See alsoBelsky v. Belsky (prospect of an inheritance rendered evidence admissible).
In discussing the difference between evidence affecting the division of the marital estate as opposed to the actual marital estate, the court cites approvingly the Illinois case of In re Marriage of Smith, which stands for the proposition that, even where the governing statute excludes inheritances from the definition of marital property, it is proper for the court to consider an inheritance as a factor bearing on division of property.
The Illinois statute mandates a consideration of “relevant economic circumstances of each spouse,” as well as “the reasonable opportunity of each spouse for future acquisition of capital assets and income.” Even though inheritances are not divisible marital assets, the court found that it was appropriate for the trial court to consider the future inheritance when entering its alimony order.
In the Indiana case of Lord v. Lord, the court notes that the Indiana statute preserves the “one pot” theory and specifically prohibits exclusion of any assets from the scope of the trial court’s power to divide and award. As in Smith,the issue before the court was whether the trial judge was required to exclude evidence relating to the wife’s expectancy. The court noted that “such evidence is admissible and relevant in certain situations as an economic circumstance of the spouse.” Although admitted, the trial justice gave the evidence no weight because he determined it to be too speculative. The trial justice’s findings are most instructive on this matter:
The court now finds that the evidence was properly admitted during the trial and the objection goes to the weight to be given to the evidence rather than its admissibility. There was no evidence as to the health of petitioner’s mother nor evidence from which the court could reasonably infer her life expectancy. There was no evidence that she had made a will, the evidence was to the contrary. The evidence considered as a whole seems too speculative and remote to be of any value for consideration in the division of assets of the parties, and the court has not given any consideration to that evidence in making a division of the property. Such an expectancy in this case is not clearly within Ind. Code 31-1-11.5-11(b) and is so uncertain an occurrence that the court finds that it should not be afforded the weight in the disposition of the assets of the parties. The petitioner could predecease her mother, the mother could draft a will leaving all of her property to another, the government authorities might change the laws of inheritance or taxation so as to make the expectancy of considerably different value, et cetera. However the court is of the opinion that evidence of such an expectancy was properly admitted under Ind. Code 31-1-11.5-11(b)(3) as an economic circumstance of the spouse. It is not too difficult to conceive of a situation where the property does not fall within the code provisions as property to be divided but nevertheless should be given some consideration by the court. [Emphasis supplied.]
While we must recognize that unlimited pretrial discovery of relatives can be used to harass as well as to obtain legitimate information, two principles must be kept in mind. First, Mass. R. Civ. P. 26(b) provides that the scope of discovery is broad. In interpreting Rule 26, Massachusetts courts have adopted the definition of “relevancy” established by the United States Supreme Court in connection with Fed. R. Civ. P. 26(b)(1):
The United States Supreme Court has defined relevancy under Fed. R. Civ. P. 26(b)(1), the parallel rule to Mass. R. Civ. P. 26(b)(1), 365 Mass. 772 (1974), “broadly to encompass any matter that bears on, or that reasonably could lead to other matter that could bear on, any issue that is or may be in the case, see Hickman v. Taylor, 329 U.S. 495, 501, 67 S. Ct. 385, 388, 91 L. Ed. 451 (1947). Consistently with the notice-pleading system established by the Rules, discovery is not limited to issues raised by the pleadings, for discovery itself is designed to help define and clarify the issues. Id. At 500-501, 67 S. Ct. at 388. Nor is discovery limited to the merits of a case, for a variety of fact-oriented issues may arise during litigation that are not related to the merits,” Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351, 98 S. Ct. 2380, 2389, 57 L. Ed. 2d 253 (1978). “[A]bsent compelling reasons to the contrary,” Rollins Envtl. Servs., Inc. 368 Mass. 174, 179-180 (1975).
Second, discovery is not foreclosed because the party with the burden of responding to discovery suffers detriment. Hearst Corp. v. A. Walk, Inc. (court allowed discovery though defendants showed that their business would suffer if the discovery requested were allowed).
Davidson does suggest that a standard of reasonableness must be maintained. If the evidence is admissible and the trial justice must then decide what weight to accord it, it is clear that limitations do exist with regard to the persons who may be deposed and to the extent of the examination. A third cousin with whom there is no showing of a relationship is clearly not a person who should be deposed.
A parent or grandparent with whom a party has been very close is on a different footing. The age and medical status of that person, as well as details of the estate plan, are relevant. Furthermore, the net worth of the deponent (rather than his or her current income) is the proper subject of inquiry.
In conclusion, there is clearly a difference between property subject to present division and the expectancy of the future acquisition of assets, which should affect the current division. Nevertheless, because an item is considered too uncertain to be divided as part of marital property does not mean that it should not be part of the court’s deliberations of how the marital property will be allocated.
Furthermore, there is a distinction between the relevance of evidence and the weight to be accorded it. G.L. c. 208, § 34, requires that the court consider the future, as well as the past and present. To deny that inheritances are an essential element of a party’s future contradicts the letter and spirit of the statute and the true meaning of the phrase “equitable distribution.”
 19 Mass. App. Ct. 364 (Feb. 20, 1985).
 Id. At 370.
 Id. At 374.
 Id. At 374-375.
 Id. At 370.
 372 Mass. 398 (1977).
 9 Mass. App. Ct. 852 (1980).
 100 Ill. App. 3d 1126 (1981).
 Ill. Rev. Stat. 1979, c. 40, ¶ 503.
 443 N.E.2d 847 (Ind. App. 1982).
 Supra. N. 8, at 1130-1131.
 Lord v. Lord, II. 443 N.E.2d 847 (Ind. App. 1982).
 Id. At 852.
 Cronin v. Strayer, 392 Mass. 526, 467 N.E.2d 143, 149 (1984).
 12 Mass. App. Ct. 951, 426 N.E.2d 1167, 1168 (1981).
The article “Davidson v. Davidson – A Careful Guide Through the Thicket of Future Inheritances and Expectancies Under G.L. c. 208, § 34” appeared in Volume 3, No. 1 (Spring, 1985) of The Massachusetts Family Law Journal.
Factors to be Considered in Dividing Marital Assets Under G.L. c. 208, §34
- Length of marriage.
- Conduct of the parties during the marriage.
- Age of the parties.
- Health of the parties.
- Station of the parties.
- Occupation of the parties.
- Amounts and sources of income.
- Vocational skills.
- Estate (assets) of the parties.
- Liabilities of each of the parties.
- Needs of each party.
- Opportunity of each party for future acquisition of capital assets.
- Opportunity of each party for future acquisition of income.
- Contribution of each party in the acquisition, preservation or appreciation in value of their respective estates.
- Contribution of each party as homemaker.
- Needs of the children.
Children who are exposed to adult domestic violence frequently suffer long-term negative consequences as a result. Consequently, courts and legislatures have begun to consider the perpetration of domestic abuse as an important factor in private child custody disputes.
Yet guardians ad litem, who are appointed with increasing regularity in these cases, are often inadequately prepared to recognize and address this complicated issue. This Note looks at the historical use of guardians ad litem, as well as the current understanding of connections between domestic violence and child custody disputes, and concludes that with adequate standards and guidelines in place, guardians ad litem could help protect children who are exposed to domestic violence from further harm.
The Note concludes with a set of recommended uniform guidelines that could be adapted to each state’s particular system of guardian ad litem use to protect children from further exposure to domestic abuse. [Read More – PDF]
By Cynthia Grover Hastings
Private mediation is an alternative to litigating your divorce. Litigation is the familiar “adversarial process” where you and your spouse each hire an attorney, and then the two attorneys negotiate directly with each other and make court appearances on behalf of you and your spouse. There are also alternatives to litigation such as private mediation, conciliation, arbitration, dispute intervention, collaborative law, and court-connected mediation.
All forms of alternative dispute resolution (often called “ADR”) are distinct and have their own unique attributes.
Private mediation1 is a voluntary and confidential process designed to help individuals reach agreements on the financial, parenting, and other issues raised by their divorce with the assistance of an impartial, professional, third party. The goal of private mediation is to assist you and your spouse with identifying and clarifying the issues to be resolved and to achieve a written agreement before you go to court.
The impartial third party, or mediator, is usually an attorney or a mental health professional. The role of the mediator is to help you and your spouse exchange information, freely discuss issues, and negotiate an agreement, which is acceptable to both of you and to the court. The mediator does not have the power to make decisions for you, like a judge or an arbitrator would, but rather will help facilitate resolution.
There are good reasons why you may want to mediate instead of choosing traditional litigation. People are generally more satisfied with the agreements they make for themselves, and more likely to follow them, as opposed to a judgment imposed on them by the court. Mediation can help improve communication skills with your spouse and help navigate the waters of the divorce process with minimal hostility. This may be especially important to you if you have children with your spouse and you will need to continue to work together as parents after the divorce. You also have more control over the process. Finally, depending on the dynamics between you and your spouse and the mediator involved, mediation can be faster and less expensive than traditional litigation.
Not all cases, however, will be appropriate for mediation and an experienced mediator or family law practitioner can advise you as to whether it may be right for your particular situation.
The specific process of private mediation will depend on the chosen mediator and the parties involved. It will usually take place in the mediator’s office with you and your spouse in the room together and without your attorneys present. It generally will take several sessions to complete the mediation process, but the process is voluntary and either party can terminate mediation at any time.
Under Massachusetts law, mediation is confidential, meaning that the work product of the mediator and any communications made during mediation are confidential and not admissible as evidence in divorce and other legal proceedings. M.G.L. c. 233, § 23C. For this confidentiality provision to apply, your mediator must have completed a certain amount of training and meet the criteria of the statute. Your mediator should explain to you what is protected by confidentiality and what may not be (for example, some mediators are mandated to report child abuse).
Most mediators will recommend that you consult with an experienced family law attorney during the process. An attorney can help you prepare for the mediation, act as a consultant during the process, advise you as to whether the agreements you have reached are in your best interest, and represent you for the final negotiation and presentation of the agreement to the court. If an agreement is reached, there will be a process involving your individual attorneys where the agreement will be reduced to writing and the final details negotiated. Once the agreement is finalized and signed, in most cases it will then need to be presented to the court for approval. If no agreement is reached, you will discuss with your individual attorney your options, which may include filing a complaint for divorce with the court and beginning traditional litigation.
If you are interested in mediation, please contact our office for additional information. Our family law practitioners are experienced with both mediation and divorce litigation, and we often serve as attorneys representing clients during and after the mediation process.
1 This article does not discuss the specifics of “court-connected” or “court-ordered” mediation services.
You will already have received a notice from the court (“Notice of Assignment”) telling you what day and time to be at court for your uncontested divorce hearing. The uncontested divorce hearings are usually scheduled to be called at 8:30 to 9:00 AM and both parties must be present.
Try to arrive early, before 8:15 AM, to allow time to go through the security check point. If you will be unavoidably late, call the Probate and Family Court Clerk’s Office – see “After the Hearing” below for phone numbers.
You should dress appropriately, i.e., “business casual” (no shorts or tank tops, jeans, etc.).
You will be required to pass through a security check point and a metal detector before entering the courthouse. Although the exact procedures differ from courthouse to courthouse, you should be prepared to empty your pockets, to place your purse or briefcase on the conveyor belt to be electronically scanned, and to have anything resembling a weapon (e.g., pocket knives, scissors, etc.) confiscated before you enter. Cameras will also be confiscated. All cell phones must be turned off and stowed before entering any courtroom, and no photos or videos are allowed anywhere in the courthouse. Some courthouses will not permit you to bring a cell phone with a camera into the courthouse building.
Once inside the courthouse you can ask any uniformed court officer to direct you to the courtroom where your divorce will be heard. there may also be a list posted of all of the cases being heard in the courthouse that day which will indicate which courtroom you should go to. It is common courthouse jargon to refer to a “courtroom” as a “session.”
After finding the correct courtroom, the next step is to “check-in” with the clerk, also known as a sessions clerk or Assistant Judicial Case Manager. The clerk may be outside the courtroom or in the front of the courtroom.
The following instructions apply if we are not attending the court hearing with you. If we are, the attorney will take care of these details.
Ideally both parties should check in together. On busy days there may be a line. Show the clerk your hearing notice (“Notice of Assignment”) or give your last name and docket number. The clerk will review the court’s file to confirm that everything is there and properly filled out. Sometimes a document or two may be missing. Be sure you have copies of all court forms and an original, signed and notarized Separation Agreement to replace any missing documents, if necessary. Each of you will also be asked to fill out two self-addressed envelopes which will contain the court forms the court will mail to each party after the hearing.
You may be required to re-sign and re-date your financial statement on the morning of the hearing. If you stepped out of line to review your financial statement, return to the front of the line. You do not need to stand in line twice. Stand just behind and to the side of the person talking to the clerk. When that person is finished, step in front and return your re-signed and re-dated financial statement forms. After the clerk approves your documents, sit down in the courtroom and wait for your case to be called.
After most of the cases are checked in, the judge will usually enter the courtroom to begin hearing cases. When the judge enters the court, an officer will say “All rise” in a loud voice and everyone will stand up. While the court is in session, no talking is allowed, you may not use your cell phone, or smart phone, and you may only read court documents, i.e., no books or newspapers. No food, drink, or gum is allowed in the courtroom.
There is no certain order in which cases are called. Emergencies (e.g., request for restraining orders) are generally heard first, then uncontested matters, and then contested matters. Your judge will set the order on the morning of your hearing. Judges often clear their courtrooms of all parties and lawyers for certain matters (e.g., adoptions).
When your case is called a clerk will announce your last name and the docket number. Walk to the front of the courtroom and stand before the judge. The clerk will swear you in by asking you to raise your right hand and than asking: “Do you swear that the testimony you are about to give will be the truth, the whole truth, and nothing but the truth so help you God?” Since proceedings are recorded, your answer must be audible. If you have a philosophical objection to swearing to God, you may ask to “affirm” the truthfulness of your testimony instead. Always refer to the judge as “your honor.”
A judge hearing an uncontested, no-fault divorce must make two findings before “allowing” the joint petition. First, the judge must find legal grounds for the divorce, e.g., an “irretrievable breakdown” of the marriage. Second, the judge must find that the Separation Agreement is “fair and reasonable.” Judges usually focus primarily on the agreement and the financial statements.
While hearing a joint divorce petition, a judge has broad discretion to ask about almost anything during the marriage BUT NOT the marital conduct of the parties. For example, a judgment MAY ask about parental conduct that affects children, but a judge MAY NOT ask about adulterous behavior. At a minimum, you should expect to be asked if you have read the agreement, if you believe it is fair and reasonable, and if you are prepared to abide by it. The Wife may be asked if she wishes to resume her maiden name, or to confirm that she wishes to maintain her married name. The judge will ask the parties if their financial statements are accurate.
During your hearing there will be an audio “record” of the proceeding and it is perfectly “legal” to read your answers into the record. The judge will usually want to know the date of marriage, the place of marriage, the last address you and your spouse last lived together, the date of separation, the names and birthdates of the children and whether there is a continuing irretrievable breakdown of the marriage. The judge will also ask questions relative to the financial statements and agreement.
As you stand before the judge, if you are asked about survival or merger, remember:
- The Agreement either merges into the Judgment and does not survive as an independent contract between the parties; or
- The Agreement survives as an independent contract.
If you are asked what survival and merger mean, remember that merger and survival are modification standards. They are used if there is a dispute between the parties after the divorce. If you are asked what the survival and merger modification standards are, remember the working definitions:
- To modify merged provisions, there must be evidence of a material change in circumstance in a post-divorce dispute. Merged provisions are held to a “lower” standard – making them “easier” to modify in a post-divorce dispute.
- To modify surviving provisions, there must be a significant evidence of “something more” than a material change in circumstance in a post-divorce dispute. It is very difficult, if not impossible, to modify surviving provisions.
After the Hearing:
If it is a joint petition for divorce, the court should mail you a form entitled “Findings and Order”. It confirms that the court found the Separation Agreement to be fair and reasonable, and ordered the entry of judgment in thirty (30) days. If you have not received a Findings and Order form within two (2) weeks of your hearing, call a clerk in the divorce department and ask for a copy. Thirty days after the findings are issued, you will receive a Judgment of Divorce Nisi. The judgment of divorce will automatically become final in 90 days with no further notification or court hearing necessary.
If it is not a joint petition, you will receive a Judgment of Divorce Nisi, usually within a few weeks.
Some people want or need a copy of the final divorce judgment. Since the court will not issue a Judgment of Divorce Absolute without a specific request, you will need to ask for a copy from the divorce department directly. Since your judgment will not be final until 90 days of the judgment nisi, the court will not honor your request for a copy of the Judgment of Divorce Absolute until that time has elapsed. If you want a copy of your final divorce judgment, you must request it in writing or in person. If you want a certified copy, there will be a fee. If you plan to remarry, you may need a certified copy of the Judgment of Divorce Absolute when you apply for a marriage license.
You may contact the Probate and Family Court Clerk’s offices at the following numbers:
- Middlsex Probate & Family Court – (617-768-5850)
- Essex Probate & Family Court – Salem (978-744-1020)
- Essex Probate & Family Court – Lawrence (978-686-9692)
- Suffolk Probate & Family Court – (617-788-8300)
- Norfolk Probate & Family Court – (781-830-1278)
- Worcester Probate & Family Court – (508-831-2200)
Do not hesitate to call our office if you need legal assistance in the future.
The Perocchi Family Law Group wishes you the best of health and happiness in the future.
Frequently Asked Questions
- I think I need a divorce. Where do I start?
- How do I begin the process of divorce litigation?
- How long will my divorce take?
- What happens after one spouse files a Complaint for Divorce?
- My spouse has been served with the Summons. Now what?
- I cannot wait until the divorce is final to address certain issues. How do I obtain Temporary Orders?
- What is “discovery”? Why must I provide all of this information?
- What is a “financial statement”?
- How does a judge reach a decision in a divorce case?
- What if I am unhappy with the judge’s decision in the divorce?
- After I receive a Judgment of Divorce, is my divorce case over?
1. I think I need a divorce. Where do I start?
Before initiating any proceedings, you will want to meet with someone in our office to discuss your options. There are various ways to proceed with a divorce; for example, some couples choose to engage in mediation, others in the relatively new collaborative law process, and still others proceed with litigation (engaging in legal proceedings to decide contested issues). Each situation is unique and we will to discuss your options with you. This particular guide will focus on the process of litigating your divorce.
2. How do I begin the process of divorce litigation?
Divorce litigation begins when one spouse files a Complaint for Divorce with the proper Massachusetts Probate and Family Court. The spouse who files the complaint is called the “Plaintiff”, while the other spouse is called the “Defendant”. From a legal standpoint, the outcome of a divorce is not determined by which spouse files first. The Complaint for Divorce is a legal document (called a “pleading”) which describes the grounds for seeking the divorce and asks the court for certain relief. The attorneys in our office will spend some time with you discussing which grounds for divorce (for example, irretrievable breakdown or cruel and abusive treatment) should be listed on the Complaint.
3. How long will my divorce take?
It is impossible to give an exact answer to this question. For example, the grounds for divorce may have some bearing on the length of time it will take you to obtain a divorce. While the court’s goal is to complete the divorce process within fourteen months, many variables can shorten or lengthen this timeframe. For example, if there are few or no contested issues, you may be able to finalize your divorce sooner. If there are many contested issues, or if there are conflicts in the court schedule or the schedule of the attorneys, the process may take longer.
4. What happens after one spouse files a Complaint for Divorce?
After the Complaint for Divorce has been filed, the Probate and Family Court will issue a Summons. The Summons and a copy of the Complaint must be “served” or delivered to your spouse. To accomplish service, the attorneys may cooperatively arrange for service, a process server may deliver the documents to your spouse, or your spouse may voluntarily agree to “accept service.” You will have an opportunity to discuss with us your preferences as to how to have the Summons and Complaint served upon your spouse.
5. My spouse has been served with the Summons. Now what?
Once your spouse receives the summons, he or she has notice that you filed for divorce and then has an opportunity to file a response. Your spouse may file an Answer (a response admitting or denying the statements made in the Complaint for Divorce). Your spouse may also file a Counterclaim for Divorce (a pleading stating certain facts and requesting certain relief, similar to a Complaint for Divorce).
6. I cannot wait until the divorce is final to address certain issues. How do I obtain Temporary Orders?
Often spouses need to establish certain guidelines (such as who will be living in the marital home or who will pay certain bills) temporarily while the divorce is proceeding. These provisions are called “Temporary Orders.” To obtain Temporary Orders, we will need to file a motion and attend a hearing before a judge. A Motion is simply a request, usually in writing, to the judge. The following are some examples of Motions that may be filed prior to a final hearing on your case:
- Motion for Temporary Support;
- Motion for Temporary Custody;
- Motion for Attorney’s Fees; and
- Motion for Temporary Restraining Order.
The above list merely provides examples of Motions that may be filed in your case. These particular requests may not be necessary in your case, or various other requests may be appropriate. We will discuss your options with you at the appropriate time. Generally, you must be present at court for the hearing of any pretrial motions having to do with custody or financial matters.
If the judge decides to enter Temporary Orders on a pretrial motion, it will usually remain in effect until there is a final hearing on your divorce.
7. What is “discovery”? Why must I provide all of this information?
“Discovery” is the term used to describe the ways in which the attorneys attempt to discover all of the facts that will be important or relevant to your divorce prior to the trial or final hearing. The discovery process will probably involve both financial and nonfinancial information. This part of the divorce case is very important because (1) it gives us the information necessary to make recommendations as to a fair settlement or resolution, or (2) it allows us to present a complete case to the Court if it is necessary to proceed to trial.
Almost every client wants to know how long this part of the case will take. While we will try to provide a reasonable estimate, keep in mind that it is impossible for an attorney to predict exactly how long the process may take. The length of time for discovery may vary according to certain factors, which will include:
- The complexity of the issues involved;
- The difficulty in obtaining the requested information;
- The obstinacy of your spouse;
- Other commitments which your attorney might have; and
- The need to obtain outside expert advice with regard to certain aspects of the case (for example, real estate appraisals or the valuation of a business by an accountant).
You will probably do yourself a disservice if you pressure for artificial deadlines in order to get the case over. Quite often, haste interferes with our ability to obtain full discovery of all the facts necessary to obtain the best results for you. There are also certain built in time periods which may prevent your attorney from moving as quickly as you may like. For example, if we request that your spouse produce documents for review, your spouse will have at least thirty (30) days to comply. This time period is set by the Massachusetts Rules of Domestic Relations Procedure. Rules and statutes such as these are not within our control.
8. What is a “financial statement”?
Before the judge will enter any financial order or grant a divorce, you and your spouse will be required to complete a Financial Statement on a form distributed by the Probate and Family Court. This is the single most important document in a divorce case. This form provides the judge with information about each spouse’s income, expenses, assets, and liabilities.
Each spouse must sign the Financial Statement personally and under the pains and penalties of perjury. Therefore, it is extremely important that you complete this form thoroughly and accurately. You may be cross-examined on this document at court.
To complete the form accurately, it will be necessary for you to review your own records. Our office will help you complete this form and will advise you as to how to obtain the necessary information.
The important thing to remember is to be complete, accurate, and to make no assumptions regarding the ownership of assets or responsibilities for payment of debts between yourself and your spouse.
9. How does a judge reach a decision in a divorce case?
If the attorneys are able to negotiate a settlement, it will be written into a document called a Separation Agreement. This agreement must then be submitted to a judge for review and approval. In deciding whether to approve the agreement, the judge will review the Financial Statements to determine whether the agreement is fair and reasonable. If the judge determines that the agreement is fair and reasonable, it will incorporate the agreement into the Judgment of Divorce.
If you and your spouse cannot reach an agreement, the court will schedule the divorce for a trial. If there is a trial, the judge will listen to the evidence presented by both parties, usually in the form of testimony and documents. The judge will then make a decision on each of the disputed issues. Disputed issues may include custody, parenting plans, payment of child support or spousal support, and the division of debts and property. When making the decision, the judge must consider certain factors that are specified in our state statutes. The judge will also look to previous cases for guidance in how to interpret the statutes.
Each judge is different, just as the facts of each divorce are different. For this reason, it is impossible for us to predict the exact outcome for you. We may, however, make an educated guess regarding the possible outcomes in order to help you decide whether it would be better for you to settle the case or go to trial.
10. What if I am unhappy with the judge’s decision?
In a divorce, it is very rare for either spouse to feel like they “won” their case. More often, there will be parts of a Judgment with which each spouse is happy or unhappy. Either spouse may appeal a judge’s decision (asking another court to review the Judge’s for mistakes). Bear in mind, however, that it can be expensive and is often very difficult to win an appeal in a divorce case. This is because each judge has some discretion in deciding what a fair and reasonable result would be. We will review the Judgment with you and can advise you as to whether the judge’s decisions can or should be appealed.
11. After I receive a Judgment of Divorce, is my divorce case over?
Assuming neither spouse wants to appeal the decision, the Judgment is the end of the legal process. There will likely be some “winding-up” issues, such as dividing the property, and we may assist you in this process. Upon completion of these matters, the legal process of the divorce is over. The attorneys and/or the court only become involved again if one spouse refuses to comply with the Agreement or Judgment and the orders must be enforced (a “Contempt” action), or if there are substantial changes in circumstances that require that some part of the Judgment be modified (a “Modification” action). These additional legal processes are beyond the scope of this document, but you should discuss your situation with an attorney if you believe that you may need to pursue one or both of these options.
This information is intended to be only a guideline; each divorce is different and presents different issues and problems. If you have any questions, be sure to discuss them with us. We have your best interests at heart and truly want to help you understand how your case will be handled.