Divorce Case Processing Considerations
DIVORCE CASE PROCESSING CONSIDERATIONS
- TWO MAIN PATHWAYS TO A MASSACHUSETTS DIVORCE
- CONSENSUAL NO-FAULT
- Required elements
- Settlement agreement – disposes of or resolves all issues
- Property division of property acquired during marriage
- Child support – payments to parent w/physical custody per Child support guidelines
- Health insurance and uninsured medical bills
- Alimony –either waives or grants at specified rates
- Future liabilities – usually holds opposite spouse harmless
- Can extinguish any claim against opposite spouse’s estate at his/her death
- Physical custody of children and visitation rights of opposite spouse
- Legal custody – joint or sole (i.e., vested in one parent) - decision making authority regarding welfare of minor children regarding health care, education, etc.
- Executed joint divorce petition and affidavit of breakdown stating in substance that the marriage is broken and cannot be fixed
- Executed financial statements from each spouse stating weekly income and expenses as well assets and liabilities
- Original marriage certificate
- Certificate of completion of parenting class if there are unemancipated children
- Payment of filing fee – currently $ 215
- Hearing on uncontested divorce before a judge
- Both parties appear, if possible, before judge
- 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
- If approved a conditional divorce decree enters within 30 days
- 120 days after the judge approves the agreement a final divorce decree Issues and either side can get remarried
- Settlement agreement – disposes of or resolves all issues
- Required elements
- CONSENSUAL NO-FAULT
- NON-CONSENSUAL NO FAULT
- LITIGATION PROCESS
- One spouse serves the other with a complaint for divorce
- Drafts and files divorce complaint with filing fee $ 215
- Complaint served by qualified process server
- Spouse receiving complaint must file an answer to the complaint
- Parties thereafter can file motions for temporary order or discovery (e.g., interrogatories, requests for documents, depositions, etc.)
- Pretrial conference eventually scheduled by court
- Each side must file a pretrial memo fully describing the issues and their positions on the respective issues and any stipulations as to facts
- Trial scheduled
- Witnesses testify
- Exhibits entered into record
- 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
- One spouse serves the other with a complaint for divorce
- LITIGATION PROCESS
- Basic Applicable Legal Principles
- Massachusetts is an Equitable Distribution State
- 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.
- Alimony – is usually not awarded unless there is wide disparity in the earning capacities and financial conditions of the respective spouses
- 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
- Always modifiable particularly where there has been a material change in circumstances
- Example substantial reduction in income or child allegedly becomes emancipated, etc.
- Always modifiable particularly where there has been a material change in circumstances
- Physical custody of children – based on court’s assessment of what is in the best interests of the children
- Legal custody – often granted to both spouses particularly if both parents are actively involved in their children’s lives
- 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
- Property division – is usually final and cannot be modified
- Massachusetts is an Equitable Distribution State