Divorce Case Processing Considerations

DIVORCE CASE PROCESSING CONSIDERATIONS

1. TWO MAIN PATHWAYS TO A MASSACHUSETTS DIVORCE
   1. CONSENSUAL NO-FAULT
      1. Required elements
         1. Settlement agreement – disposes of or resolves all issues
            1. Property division of property acquired during marriage
            2. Child support – payments to parent w/physical custody per Child support guidelines
            3. Health insurance and uninsured medical bills
            4. Alimony –either waives or grants at specified rates
            5. Future liabilities – usually holds opposite spouse harmless
            6. Can extinguish any claim against opposite spouse’s estate at his/her death
            7. Physical custody of children and visitation rights of opposite spouse
            8. Legal custody – joint or sole (i.e., vested in one parent) - decision making authority regarding welfare of minor children regarding health care, education, etc.
         2. Executed joint divorce petition and affidavit of breakdown stating in substance that the marriage is broken and cannot be fixed
         3. Executed financial statements from each spouse stating weekly income and expenses as well assets and liabilities
         4. Original marriage certificate
         5. Certificate of completion of parenting class if there are unemancipated children
         6. Payment of filing fee – currently $ 215
         7. Hearing on uncontested divorce before a judge
            1. Both parties appear, if possible, before judge
            2. Judge makes inquiry as to whether parties understand terms of agreement, entered into it voluntarily and whether it is fair and reasonable under the circumstances
               1. If approved a conditional divorce decree enters within 30 days
               2. 120 days after the judge approves the agreement a final divorce decree Issues and either side can get remarried
2. NON-CONSENSUAL NO FAULT
   1. LITIGATION PROCESS
      1. One spouse serves the other with a complaint for divorce
         1. Drafts and files divorce complaint with filing fee $ 215
         2. Complaint served by qualified process server
      2. Spouse receiving complaint must file an answer to the complaint
      3. Parties thereafter can file motions for temporary order or discovery (e.g., interrogatories, requests for documents, depositions, etc.)
      4. Pretrial conference eventually scheduled by court
         1. Each side must file a pretrial memo fully describing the issues and their positions on the respective issues and any stipulations as to facts
      5. Trial scheduled
         1. Witnesses testify
         2. Exhibits entered into record
         3. Judge issues written decision on all issues including child custody, legal custody, visitation, property division, child support and whether any alimony is due and at what rate
3. Basic Applicable Legal Principles
   1. Massachusetts is an Equitable Distribution State
      1. The Court will look at all of the circumstances when determining property division, including, but not limited to: (1) what each side contributed to the marriage and the marital estate in terms of finances, services, etc.; (2) the length of the marriage; (3) the financial condition of each spouse; (4) the relative earning capacities of each spouse; (5) the age and needs of any children and which spouse has physical custody of the children; (6) whether any alimony is being awarded; (7) any child support orders and the ability of the responsible spouse to meet that financial burden and any additional burdens to be imposed; (8) etc.
      2. Alimony – is usually not awarded unless there is wide disparity in the earning capacities and financial conditions of the respective spouses
      3. Child support is based on the guidelines which factor in the earnings of each spouse and the number of dependent children –the court rarely deviates from the same
         1. Always modifiable particularly where there has been a material change in circumstances
            1. Example substantial reduction in income or child allegedly becomes emancipated, etc.
      4. Physical custody of children – based on court’s assessment of what is in the best interests of the children
      5. Legal custody – often granted to both spouses particularly if both parents are actively involved in their children’s lives
      6. Visitation – usually granted to parent who does not get physical custody unless that parent is found by the court to be unfit for some reason
      7. Property division – is usually final and cannot be modified