FAQ

How long does it take to obtain a Divorce?

It depends. Some Uncontested Divorce cases can move through the court system relatively quickly meaning that a court date can generally be obtained in approximately one to three months. On the other hand, Contested Divorce cases take longer, sometimes over one year, depending on the complexity of the issues. Because the Courts have instituted “time standards”, judges frequently schedule “status conferences” for the purpose of simplifying issues, promoting settlements, and moving the case along. If a settlement can be reached, then a Uncontested Court Hearing can be requested.

In an emergency situation, a Motion Hearing can generally be obtained within 24 hours.

What is the difference between Uncontested Divorce and Contested Divorce, and what are Temporary Orders?

An Uncontested Divorce essentially means that the parties have been able to agree on all issues, and that there are no issues which will be “disputed” by either side. Issues which are frequently “disputed” include the Divorce itself, child support, alimony, division of assets and property, custody of children, and visitation rights. Contested Divorces generally take much longer than Uncontested Divorces.

In a Contested Divorce, it is usually necessary and customary for a party to file a Motion for Temporary Orders requesting that the Court enter a Temporary Order addressing all or some of the 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 are obtained by filing a “Motion for Temporary Orders” with the Court, arranging for and scheduling a hearing date, and providing notice to the other party. On the scheduled Motion date, the Court will conduct a Hearing and will then enter such orders as may be necessary and required. Temporary Orders generally remain in effect for the duration of the case but can be changed pursuant to a subsequent Motion and Hearing, if there has been a change in the circumstances. Temporary Orders are also routinely requested and granted in connection with paternity cases.

If the parties are ultimately unable to reach an agreement or settlement, then the case will need to proceed to a Pre-Trial Conference and thereafter, a Trial, after which the Court, after listening to the parties and reviewing the evidence, will enter an appropriate Judgment.

If one party does not participate in the Divorce proceeding, the matter may also proceed on an uncontested basis.

What is “No-Fault Divorce”?

Historically, in order to obtain a Divorce in Massachusetts one needed to allege and prove fault grounds such as adultery, impotency, utter desertion, cruel and abusive treatment, or gross and confirmed habits of intoxication caused by the 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 a Divorce on the ground of “Irretrievable Breakdown”, it is no longer necessary to prove that either side is at “fault”. Accordingly, Divorces obtained on the ground of “Irretrievable Breakdown” are commonly referred to as “No-Fault Divorces”. In order to obtain a Divorce on the ground of Irretrievable Breakdown, a party must believe and be willing to state in court that in his or her opinion the marital relationship as it once existed has broken down, and in that party’s opinion, the breakdown is permanent, or irretrievable. If all other issues have been resolved and reduced to a written agreement, then the matter can proceed relatively quickly on an uncontested basis.

Do I need to hire a lawyer?

Everyone has the legal right to represent themselves. However, although neither you nor your spouse are required to hire an attorney, it is generally a good idea to do so given the numerous technical, procedural, and substantive issues which will need to be addressed. A simple mistake or an issue which is overlooked can easily cost you thousands of dollars in the long run. An experienced attorney will properly present the issues to the court, and can also draft appropriate language in a Separation Agreement so that all of your rights will be properly protected.

If I hire an attorney, how much will it cost to obtain a Divorce?

Uncontested Divorces generally cost less than Contested Divorces and can usually be obtained based upon a one-time “set fee”. On the other hand, legal fees for “Contested Divorces” tend to be more open-ended because it is very difficult to know in advance how much time the attorney is going to spend on the Contested Divorce. Legal fees are directly related to how much time the Attorney spends working on 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 the court, drafting memoranda, preparing discovery pleadings, taking depositions, working with expert witnesses, Trial preparation, and Trial. The anticipated cost of your divorce will be explained during your initial meeting with the attorney; however, the total cost of your divorce will be based upon the amount of time expended by 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 the parties are unable to agree, then the issues will have be presented to a judge during a hearing or trial, at which time both parties will have the right to testify, produce and cross-examine witnesses, and introduce evidence. After a trial, the judge will then render a decision. If one party simply does not cooperate, but does not actively oppose or “contest” the Divorce, the Divorce will most likely proceed on an “Uncontested basis”.

If my spouse and I agree on everything, can we both use the same lawyer?

No. Lawyers are ethically prohibited from representing both sides in the same case. Even if both sides agree, a lawyer cannot exercise independent judgment on behalf of each party. Accordingly, it is highly recommended that both sides obtain an experienced attorney, although quite often one party may decide they do not wish to obtain an attorney.

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 and took care of the 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 the difference between physical custody and legal custody, and what is shared legal or joint legal custody?

Physical custody simply refers to the parent with whom the child or the children reside. Legal custody on the other hand, refers to which parent will have the right to make major decisions on behalf of the child or children. Accordingly, a parent who has legal custody will have the right to determine all 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, when the parents are unable to agree, the court will conduct an extensive inquiry in order to determine what is in the “best interests of the child”. In making such a determination, the court will frequently appoint at “Guardian Ad Litem (GAL)” to investigate issues relating to child custody and visitation, and to report back to the court. The GAL will interview the parties, talk to witnesses, talk to the children, and in some cases may interview the children and parents together, obtain medical records, school records, etc., and will then usually make a recommendation to the court. If a party does not agree with the recommendations of the GAL, the matter can proceed to trial; however, judges often, but not always, place enormous weight on the recommendations of the GAL. Oftentimes a recommendation of a GAL can be challenged based on bias, lack of experience, failure to interview critical witnesses, or an otherwise less than thorough investigation.

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, are all considered “marital property” and 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. Accordingly, if the parties are unable to agree upon the value of their assets, appraisers are frequently utilized to appraise various assets such as real estate, business interests, and retirement plans. Appraisers can also be utilized to determine the values of other assets as well.

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 to be divided “equitably”. The Massachusetts “Equitable Division” Statute is quite different than a Community Property State such as California, where virtually all assets which have been acquired during the marriage are generally divided equally. If the parties are unable to determine for themselves how their property is to be divided, then the court will conduct a trial and will consider:

  • a. The length of the marriage;
  • b. The conduct of the parties during the marriage;
  • c. The age, health, station and occupation of each party;
  • d. The amount and sources of income of each party;
  • e. Vocational skills and employability of each party;
  • f. The estate of each party;
  • g. The liabilities and needs of each party; and
  • h. The opportunity of each party for future acquisition of capital assets and income.

In addition to the above, the court may also consider:

  • 1. The contribution of each of the parties in acquisition, preservation, or appreciation in value of their respective estates; and
  • 2. The contribution of each of the parties as a homemaker to the family unit.

I am covered by my 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 other 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 essentially is based upon one party’s need to receive alimony, and upon the other party’s ability to pay alimony. Alimony will generally be appropriate in a long-term marriage in which there is a great disparity in the incomes of the two parties.

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. The Child Support Guidelines are amended from time-to-time and new Child Support Guidelines recently 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. In some situations the Child Support Guidelines do not apply. However, when the Guidelines do apply the court will utilize a “Child Support Guidelines Worksheet”.

How is visitation determined?

The Massachusetts courts generally encourage frequent and continuing contact between children and both parents. The children’s ages and the parents’ schedules are also considered. Visitations might include day time visits, overnight visits, weekend visits, school and summer vacation visits, weekday dinner visits and telephone visits. Usually a parenting plan will take into consideration all of the above in order to fashion a visitation arrangement which will be in the children’s best interests and which 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 visitation, or visitation 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 a 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, the other side can file a Complaint for Contempt seeking enforcement of the Order, as well as reimbursement for attorney’s fees. Contempts may be 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. Is there anything that I can do to change the Court’s Order?

Yes. If there has been a material or substantial change in the circumstances, then a Complaint for Modification may be filed, after which the Court can “modify” the previous Order. Modification proceedings are frequently filed in order to obtain more child support, as a result of the obligor obtaining employment or receiving substantially greater income. Likewise, Modifications can be filed in order to pay less child support if there has been a significant reduction in income. Based upon the circumstances, Modifications can also be filed to increase or decrease visitation with minor children. Modifications are also frequently filed years after the divorce in order to determine a parent’s obligation with regard to payment of college tuition.

Do I need a Pre-Nuptial Agreement before I get married?

Generally a Pre-Nuptial Agreement may be entered into between the parties prior to marriage which will determine their subsequent rights in the event of death or Divorce. Pre-Nuptial Agreements are often utilized when one party to the marriage has substantial or significant assets which he or she desires to protect in the event of a subsequent Divorce. Pre-Nuptial Agreements are also utilized when one party is seeking to preserve assets for children from a prior relationship. The law pertaining to Pre-Nuptial Agreements has changed significantly over the years and is extremely complicated. There needs to be complete disclosure of assets and income. It also must be clear that there was an informed waiver of marital rights, meaning that it must appear evident from the terms of the agreement that each side fully understood what his or her marital rights were and that each was intentionally giving up those rights. Generally each side should also be represented by an experienced attorney. If one side is not represented by an attorney, then that party could conceivably challenge the validity of the Agreement years later by arguing that they did not fully understand what their rights were and what rights were being given up pursuant to the Agreement.

If I already have an attorney, am I allowed to talk to another attorney about my case?

The client and the attorney need to be able to work well together, and agree upon an overall strategy, and upon the direction the case is going to take. Mutual trust between the attorney and the client is not only critical but essential. The attorney should also explain to the client approximately what the total legal fees are going to be, or at least how the legal fees are going to be calculated. All telephone calls to your attorney should be returned within 24 hours or less.

However, if the attorney and the client are not working well together, or if the case seems to be taking an unusual direction, or if you are consistently not doing well in Court, or in negotiations with the other party’s attorney, then you probably should consider obtaining a second opinion from an experienced attorney.

I am buying or selling a house or condominium. Should I have an attorney?

Most of the time the purchase or sale of residential real estate is fairly straightforward. The process involves offer and acceptance, home inspection, Purchase and Sale Agreement, obtaining a mortgage commitment, calculation and review of closing adjustments, and real estate closing. The attorney for the lender will generally conduct the real estate closing. However, even though there is some “overlapping” between the interests of the lender and the interest of the buyer or seller, the role of the lender’s attorney is primarily to represent the lender. The role of the buyer or seller’s attorney on the other hand is to represent the interests of the buyer or seller and in connection therewith, there are usually numerous issues which have nothing to do with the lender. If you are buying property, you need to make certain that your deposit will be protected all of the way through the transaction and that if the transaction does not occur for whatever reason, that your deposit will be refunded in full, particularly if you are unsuccessful in obtaining a mortgage commitment. Likewise, if you are selling a property, you will want to make certain that the transaction proceeds as it should and that the property will be sold at the appropriate time.

I have been arrested and charged with a criminal offense. Do I need to hire an attorney?

All parties in criminal cases have the legal right to represent themselves. If you’re income is below certain guidelines established by the Court, then an attorney will be appointment to represent you. However, if you do not qualify for a Court-appointed attorney, you should strongly consider hiring an experienced attorney. The Criminal Justice System is fairly complicated, and while many cases can be successfully negotiated or “plea-bargained”, it is extremely difficult to negotiate on your own behalf with an experienced Assistant District Attorney. In most criminal cases, you may need to conduct Pre-Trial Discovery, complete a Pre-Trial Conference Report, and make an election as to whether or not you are seeking a Jury Trial or a Jury Waived Trial. Also, strategy decisions need to be made as to whether or not to explore the possibilities of a “plea bargain” and if so, at what point in the proceedings “plea bargains” should be considered. These are the types of decisions which will affect the outcome of your case and, accordingly, they should be made under the guidance of an experienced attorney.

When Should a Complaint to Establish Paternity be filed in Court?

If a child is born out of wedlock and the parties are living together and the child’s father is properly identified on the child’s birth certificate, then a Complaint to Establish Paternity is probably not necessary. Otherwise, either parent may initiate a Court proceeding by way of a Complaint to Establish Paternity for the purpose of having an acknowledgement or adjudication of paternity made by the Court. Children born to parents who are not married to each other shall be entitled to the same rights and protections of the law as all other children. Accordingly, a Complaint to Establish Paternity in addition to determining who the father of the child is, can also establish Orders for child support, custody, visitation, health insurance, uninsured medical expenses and education.

After a Complaint to Establish Paternity is filed, the Court, on motion of either party, can order DNA/Genetic Marker Testing, the results of which are usually expressed as a statistical probability. If the report of such tests indicate a statistical probability of paternity of 97% or greater, there shall be a rebuttable presumption that the putative father is the father of such child. If a party refuses to submit to a Genetic Marker Test, the refusal shall be admissible and the Court may draw an adverse inference from such refusal.

If during the probable period of conception, the mother of the child was married to someone other than the putative father, the Court may still order Genetic Marker Testing after notice has been provided to the spouse or former spouse of mother.

In a Paternity proceeding, the Court may also award past or retroactive support from the time of birth until the Temporary or Permanent Order goes into effect.

Under what circumstances will the Court issue a Restraining Order?

Pursuant to Massachusetts General Laws c. 209A, a person suffering from abuse may file a Complaint with the Court requesting the issuance of a Restraining Order. “Abuse” is defined as the occurrence of one or more of the following acts between family or household members:

  • Attempting to cause or causing physical harm;
  • Placing another in fear of imminent serious physical harm;
  • Causing another to engage involuntarily in sexual relations by force, threat or duress.

The Court will generally conduct an immediate hearing and if after such hearing, determines that the person requesting the Restraining Order has been abused, the Court may enter all or some of the following orders:

  • Ordering the Defendant to refrain from abusing the Plaintiff;
  • Ordering the Defendant to refrain from contacting the Plaintiff;
  • Ordering the Defendant to vacate forthwith and remain away from Plaintiff’s household, dwelling or workplace;
  • Awarding Plaintiff temporary custody of a minor child.

Generally, the initial request for a Restraining Order is made without notice to the other party (ex parte) after which there is usually a full hearing in approximately 10 days, at which time the Defendant is given an opportunity to be heard. At the full hearing, the Court can extend the Restraining Order for up to one year.

Once a Restraining Order is issued by the Court, the violation of the Restraining Order shall be deemed criminal and may subject a Defendant to arrest and prosecution. Accordingly, any person against whom a Restraining Order has issued must abide by the terms of the Restraining Order exactly, and should have no contact with the Plaintiff.

In order to obtain a Restraining Order, in addition to a Petition, the Plaintiff will also need to prepare and sign an “Affidavit” which is a statement of facts signed under the “penalties of perjury”. It is important when submitting an Affidavit that the abuse be well documented, as omitting important facts may raise substantial questions later on. If a Restraining Order has been issued against you, it is generally a good idea to obtain a copy of the “Affidavit” well in advance of the Court Hearing date, in order to be properly prepared to meet the allegations and accusations.

209A Abuse Prevention Restraining Orders are generally issued by the District Courts and by the Probate Courts. In addition, the Probate Courts can also issue a different type of Domestic Relations Protective Order based upon endangerment to a parties “health, safety or welfare”.