Divorce
Handling a Divorce case or Child Custody matter requires knowledge of family law and court procedure. Let us help you navigate your case to a successful result.
If you are reading this, you most likely are contemplating or facing a potential divorce. You may have many questions:
- Where do I start?
- How do I protect myself and my assets?
- How do I obtain alimony or child support?
- How much alimony or child support will I be required to pay?
- How do I preserve my relationships with my children?
- What do I need to do to accomplish my goals?
Below you will find information that help you answer these questions. Afterwards, please contact us to set up a free consultation. We will devise a personal strategy designed to achieve a successful result.
How long does it take to obtain a Divorce?
It depends. Some Uncontested Divorce cases can move through court system relatively quickly meaning that court date can generally obtained in approximately one to three months. On the other hand, Contested Divorce cases take longer, sometimes over one year, depending on complexity of issues.
What is difference between Uncontested Divorce and Contested Divorce, and what are Temporary Orders?
An Uncontested Divorce essentially means that parties have been able to agree on all issues, and are no issues which will “disputed” by either side. If one party does not participate in the Divorce proceeding, the matter may also proceed on uncontested basis.
In a Contested Divorce, issues which are frequently “disputed” include the Divorce itself, child support, alimony, division of assets and property, custody of children, and visitation rights. It is usually necessary and customary for party to file Motion for Temporary Orders requesting that Court enter Temporary Order addressing of following issues: custody, visitation, child support, medical insurance, payment of uninsured medical and dental expenses, alimony, as well as issues relating to occupancy and upkeep of the marital home. Temporary Orders generally remain in effect for the duration of the case but can be changed pursuant to a subsequent Motion and Hearing, has been change in circumstances surrounding the matter. Temporary Orders are also routinely requested and granted in connection with custody cases.
What is “No-Fault Divorce”?
Historically, in order to obtain Divorce in Massachusetts one needed to allege and prove that one party was fault, by accusing that party of such acts as adultery, impotency, utter desertion, cruel and abusive treatment, or gross and confirmed habits of intoxication caused by voluntary and excessive use of intoxicating liquor or drugs. During the 1970s the Massachusetts Legislature added an additional cause of action called “Irretrievable Breakdown”. Pursuant to Divorce on grounds of “Irretrievable Breakdown”, is no longer necessary to prove that either side is “fault”. Accordingly, Divorces obtained on grounds of “Irretrievable Breakdown” are commonly referred as “No-Fault Divorces”. In order to obtain Divorce on grounds of Irretrievable Breakdown, a party must believe and be willing to state in court his or her opinion the marital relationship as once existed has broken down, and in party’s opinion, the breakdown is permanent, or irretrievable.
Do I need to hire a lawyer?
Everyone has legal right to represent themselves. However, although neither you nor your spouse are required to hire attorney, is good idea given the numerous technical, procedural, and substantive issues which will need to addressed. A simple mistake or issue which is overlooked can easily cost you thousands of dollars in long run. An experienced attorney will properly present the issues to court, and can also draft appropriate language in Separation Agreement your rights will be properly protected.
If I hire attorney, how much will it cost to obtain Divorce?
Uncontested Divorces generally cost less than Contested Divorces. Legal fees for “Contested Divorces” tend more because is very difficult to know in advance how much time the attorney is going to spend on Contested Divorce. Legal fees are directly related to how much time the Attorney spends working your case. Based upon the complexity of the issues, the attorney may need to spend time interviewing the client, interviewing witnesses, drafting motions and pleadings, scheduling court hearings, traveling to and from court, drafting memoranda, preparing discovery pleadings, taking depositions, work with expert witnesses, on Trial preparation, and Trial. The anticipated cost your divorce will be explained during your initial meeting with the attorney; however, the total cost of divorce will based upon the amount of time expended the attorney in order to resolve the contested issues.
Can I still obtain a Divorce if my spouse is not going to agree or cooperate?
The short answer is “yes”. If parties are unable to agree, the issues will have be presented to judge during hearing or trial, at which time both parties will have right to testify, produce and cross-examine witnesses, and introduce evidence. After a trial, the judge will then render decision. If one party simply does not cooperate, but does not actively oppose or “contest” the Divorce, the Divorce will most likely proceed on “Uncontested basis”.
If my spouse and I agree on everything, can both use the same lawyer?
No. Lawyers are ethically prohibited from representing both sides in same case; however, able to assist as mediator working with both you and your spouse to resolve the contested issues.
Will child custody always go to the mother?
No. The Massachusetts General Laws, as well as the Case Law, indicate that in the absence of misconduct, the rights of the parties shall be deemed to be equal. However, the courts will generally look to what is in the best interests of the child, as well as what arrangements the parties had in effect prior to the filing of the divorce. For example, if the mother stayed at home to care forthe child while the husband worked, then in all likelihood the court will continue that arrangement. Accordingly, which parent is deemed to be the child’s “Primary Caretaker” is always an important consideration.
What is difference between physical custody and legal custody, and what is shared legal or joint legal custody?
Legal custody refers to parent will have right make major decisions on behalf of child or children. Accordingly, parent who has legal custody have right to determine major life decisions, including elective major medical procedures, religious upbringing, school, etc. When parties have shared legal custody, also known as joint legal custody, the parties must consult and agree on all major life decisions for the children. Because child custody often permanently affects the relationship between a parent and a child, the parents are unable to agree, the court will conduct an extensive inquiry in order to determine is “best interests of child”.
Courts often not use term physical custody anymore, but rather parenting time for each parent, which refers to each parent’s time spent with the child or children. Usually, one parent has significantly more parenting time with the children because the children will primarily reside with one parent.
How are assets and property divided?
Assets or property held jointly in both parties’ names, held separately in either party’s name, as well as assets acquired prior to the marriage by either party, must be considered by the court in fashioning a property division. In order to equitably divide assets, the court will need to determine and identify the assets, and then determine the Fair Market Value of each asset.
Assets may include real estate, motor vehicles, investment properties, bank accounts, 401K retirement accounts, shares of stock, bonds, furniture, stock options, royalties, jewelry, etc.
The division of assets and property is generally determined by Massachusetts General Laws c. 208, §34, which provides that marital assets are divided “equitably”. If parties are unable to determine for themselves how their property is divided, the court will conduct trial and will consider the following factors:
- length of marriage;
- conduct of parties during the marriage;
- age, health, station and occupation of each party;
- amount and sources of income each party;
- vocational skills and employability of each party;
- estate of each party;
- liabilities and needs of each party;
- opportunity of each party for future acquisition of capital assets and income;
- contribution of each the parties in acquisition, preservation, or appreciation in value of respective estates; and
- contribution of each parties as homemaker the family unit.
I am covered by spouse’s medical insurance, life insurance, and retirement plans. What happens if I get divorced?
While the Divorce is pending, both parties are automatically restrained from causing the party or the minor children to be removed from coverage under an existing insurance policy, or permitting such coverage to lapse, including medical, dental, life, automobile and disability insurance. The parties are required to maintain all insurance coverage in full force and effect. The parties also may not change the beneficiary of any life insurance policy, pension or retirement plan, except with the written consent of the other party or by Order of the Court. Issues relating to medical insurance, life insurance, and retirement and pension plans will be addressed while your Divorce is pending, either through negotiation or if the parties are unable to agree, then by the Court.
Am I entitled to alimony?
Unlike child support, a party does not have an entitlement to receive alimony from a spouse. The court will look closely at the overall circumstances of the marriage and will apply the various criteria set forth in G.L. c. 208, §34. Alimony in Massachusetts Alimony essentially is based upon one party’s need to receive alimony, and upon the other party’s ability to pay alimony. Alimony will generally appropriate in long-term marriage which is great disparity the incomes of two parties. Alimony will usually not ordered the court while child support order is place unless the payor’s annual income is greater than $250,000.00.
Alimony Reform Act
In 2012, Massachusetts adopted it Alimony Reform Act, M.G.L. c. 208, §§ 48-55. The Alimony Reform Act provides guidelines to determine the amount of alimony and the length of time it should be paid. The formula determines the amount of General Term Alimony obligation based on parties income, has not are considered for setting child support order, and is limited to 30% to 35% of difference the parties incomes. The duration of alimony order is based length of marriage.
| Length of Marriage | Duration of Alimony |
| 0 to 5 Years | 50% length of marriage |
| 6 to 10 Years | 60% length of marriage |
| 11 to 15 Years | 70% length of marriage |
| 16 to 20 Years | 80% length of marriage |
| 20 Years or more | Indefinite Duration |
How is child support determined?
In Massachusetts, the courts utilize Child Support Guidelines in order to determine the level of child support which would be appropriate in various situations. New Child Support Guidelines went into effect on January 1, 2009. In setting a Child Support Order pursuant to the Guidelines, the court will consider child care costs, the number of children, cost of medical insurance for the children, the amount of parenting time expended by either parent, and prior court Orders and obligations affecting either party. Generally, the court is required to utilize the Guidelines; however, in certain circumstances the court may deviate from the Guidelines by entering specific written findings. Information on Child Support Guidelines
How is parenting time or visitation determined?
The Massachusetts courts generally encourage frequent and continuing contact between children and both parents, and refer to the time spent between each parent and the children as parenting time rather than custody and visitation. The children’s ages and the parents’ schedules are considered. A parenting plan should be fashioned in the children’s best interests and will afford the children an opportunity to spend as much time as possible with both parents.
Notwithstanding the above, when there has been abusive, violent, or neglectful behavior by a parent towards a child, there may be no parenting time, or parenting time may be required to be supervised. Sometimes when a parent, for whatever reason, has not seen a child for a lengthy period of time, the court may require that the initial visits be supervised and then reviewed periodically with the goal of gradually expanding and normalizing visits.
What can I do to enforce a Court Order for child support or visitation?
Once the Court has made Temporary Order or a Permanent Order, or Judgment, both parties are obligated to comply with the Order. If one side does not comply with the Order, other side can file Complaint for Contempt seeking enforcement of Order, as well as reimbursement for attorney’s fees. Contempt maybe filed to enforce all kinds of Court Orders, including but not limited to child support, alimony, visitation, and property division.
Since the Court Order or Judgment was entered, the circumstances have significantly changed. There anything that I can do to change the Court’s Order?
Yes. The material or substantial change in circumstances, the Complaint for Modification may filed, which their Court can “modify” the previous Order. Modification proceedings are frequently filed in order to obtain more child support, as result of obligor obtaining employment or receiving substantially greater income. Likewise, Modifications can filed in order to pay less child support if there has been a significant reduction in income. Based upon the circumstances, Modifications also their filed to increase or decrease parenting time with minor children. Modifications also frequently filed years after the divorce in order to determine child has been emancipated, thereby terminating child support, or parent’s obligation with regard to payment of college tuition.
If I already have attorney, allowed to talk to another attorney about my case?
Yes, the client and the attorney able to work well together, agree upon overall strategy, and upon the direction case is take. Mutual trust between the attorney and the client is essential.
However, if attorney and the client as not work well together, or the case seem take unusual direction, or as consistently not doing well in Court, or in negotiations with other party’s attorney, you should consider obtaining second opinion from experienced attorney.