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:
1) The Agreement either merges into the Judgment and does not survive as an independent contract between the parties; or
2) 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.