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The Divorce Process in Massachusetts

Posted: December 17, 2014 In: Uncategorized

Frequently Asked Questions

  1. I think I need a divorce. Where do I start?
  2. How do I begin the process of divorce litigation?
  3. How long will my divorce take?
  4. What happens after one spouse files a Complaint for Divorce?
  5. My spouse has been served with the Summons. Now what?
  6. I cannot wait until the divorce is final to address certain issues. How do I obtain Temporary Orders?
  7. What is “discovery”? Why must I provide all of this information?
  8. What is a “financial statement”?
  9. How does a judge reach a decision in a divorce case?
  10. What if I am unhappy with the judge’s decision in the divorce?
  11. 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.

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