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50 Questions about Massachusetts Divorce

Massachusetts Divorce Basics

What if we get divorced in a different state than we were married in?

You do not have to file for divorce in the same state you were married. In Massachusetts, the party filing for the divorce must have lived here for one year. You may file in the county where you live or where you and your spouse last lived together.

What if my spouse wants a divorce but I don’t?

It is nearly impossible to contest a divorce. Since this state allows divorce due to “irreconcilable differences” all your spouse needs to prove is that they cannot live with you or no longer love you. For many people, this is a sign that it is time to move on since courts are not in the business of forcing an unhappy individual to remain married.

If your spouse files a divorce based on fault, you can dispute the reasons you are at fault. But this will likely convert your divorce to a “no fault” divorce rather than stop it completely.

What is the general timeline for a divorce?

Divorces are as unique as the people involved with them. If you and your spouse agree to terms like child custody and property division, your divorce will be final quicker. The minimum amount of time for a divorce to finalize is 90 days because that is the length of the statutory waiting period.

How long do uncontested divorces take?

An uncontested divorce will finalize within 90 to 120 days. If there is a separation agreement involved, the timeline is closer to the 120 days. There are simplified divorce procedures for people who are in complete agreement and they may apply to you. That is why it is important to discuss this with an attorney.  

What are the grounds for divorce in MA?

That depends on whether you decide on a no-fault or fault divorce. With a no-fault divorce, you simply plead that the marriage is beyond repair and it is time to move on. Fault divorces litigate who is at fault for the failure and determine who receives a greater share of property or damages based on the proof of that fault.

What is a no fault divorce?

A no-fault divorce does not require parties to prove blame for the breakdown of the marriage. The ground for this action is “irretrievable breakdown of marriage” and either one or both parties can file it to start the process.

What is a fault divorce?

You also have the option of filing for divorce and claiming one person is to blame for the failure of the marriage. Common fault grounds include cruelty and abuse, desertion for one year or more, adultery, impotency, excessive use of drugs or alcohol, failure to provide support or maintenance, and sentences of five years or more in a penal institution.

These actions are much more intense and will drive up your attorney fees. It is recommended that you choose a no-fault divorce unless you have solid proof of any fault grounds and prevailing produces sizable advantages to you.

Which states are no-fault divorce states?

States that do not offer fault grounds for divorce include Wisconsin, Washington, Oregon, Nevada, Nebraska, Montana, Missouri, Minnesota, Michigan, Kentucky, Kansas, Iowa, Indiana, Hawaii, Florida, Colorado, and California. Your only option is no-fault divorce in these areas.

What are Massachusetts’ separation requirements?

Massachusetts does not have “legal separation.” You do not need court permission to live away from your spouse. Separation agreements often occur before a divorce to set out terms for child custody, the division of debts and property, and what to do with the family home. It will also make it easier to finalize your divorce since those terms will be favored through the procedure.

How long is Massachusetts’ waiting period?

Once the judge signs a Judgement of Divorce, it becomes final after a 90 day waiting period where it becomes an Absolute. There are cases in simplified divorces where the waiting period is reduced to 30 days but that only applies in specific circumstances.

Is there a way I will not have to appear in court?

Unfortunately, even uncontested cases require a court hearing. You can file a motion requesting a waiver of attendance but it is unlikely to be granted except under dire circumstances. Keep in mind that while this seems inconvenient, your hearing in an uncontested case will not be too time-consuming or complex.

What if we change our minds about our divorce but have already filed?

If the Absolute is not in effect yet, you and your spouse and stipulate to dismissing the divorce action. That will stop the current process and will not restrict your options to refile in the future.

How will adultery affect divorce proceedings?

Adultery has no impact in a no-fault proceeding. If you file a fault proceeding, then you need to prove adultery occurred. Keep in mind that unless you walked in your spouse and the other individual while they were in the act, this is a difficult task and you are unlikely to prevail when proving adultery.

When is a divorce considered finalized?

A divorce is final 90 days after the judge signs a Judgement of Divorce. At that point, it is an Absolute and you are officially divorced. If you decided the divorce was a mistake after that point, the only remedy is to get remarried.

What is the difference between a divorce and an annulment?

An annulment is a declaration that a marriage never existed. For example, if you discovered your spouse was already married to someone else, that renders your marriage invalid and you can secure an annulment.

A divorce proceeding ends a legal and valid marriage. Even if you realize one week after your wedding the marriage was a mistake, you still need to go through a divorce. A short ill-thought-out marriage is still a marriage. There is still misinformation circulating that these short time frames allow an annulment.

Are divorce records public?

Yes. If you wish to protect your children or hide embarrassing information, you must file a motion to request your records be sealed. Many courts are willing to grant that motion if there was abuse involved.

What is legal separation?

A legal separation is court authorization for spouses to live apart. Massachusetts does not require court permission to move out of the marital home so the concept of legal separation does not exist here.

What is the process for modifying our divorce agreement?

If both parties agree to the changes, it is only a matter of submitting the signed modification to the court. The judge then finalizes it. Otherwise, you need to file a Complaint for Modification and convince the court that there was a material change of circumstances since the entry of the original judgment. Grounds must be based on new facts or facts that were not known at the time. You can not relitigate previous issues.

What is the divorce rate in Massachusetts?

Massachusetts has one of the lowest divorce rates in the U.S. at 9.1 percent.

Can I change my name before the divorce is finalized?

You can change your name at any time through a separate court proceeding, even before a final divorce order. If you would rather finish a name change in one step, wait until the final divorce order and then use that document to change your name at the DMV, Social Security Office, and other agencies.

What is the difference between mediation and collaboration?

Collaboration is an ongoing process where parties constantly negotiate until they reach an agreement. Mediation is an informal proceeding where an unattached third party guides the discussion for one to two days to help parties find agreement.

Is it possible to go through a divorce without an attorney?

Yes. You can file divorce forms online and file your own complaint. However, if you have children or face abuse from your spouse, this is not recommended. An attorney offers a measure of protection but also helps you avoid knee jerk decision making that will affect you for the rest of your life.

More on the Divorce Process here.

Support and Alimony

What is the average cost of a divorce?

For attorney fees, the price of a divorce can range from $3,700 for an uncontested one where parties agree to all the terms to over $20,000 for a combative fault proceeding where there is no agreement. There are some circumstances where a divorce may be completed for a flat fee but that only works in a few cases.

In addition to attorney fees, there are filing fees. A divorce complaint costs $200 to file and in some jurisdictions, there is a $15 surcharge.

How is alimony calculated?

Alimony is determined by considering the length of the marriage, abilities of spouses to earn an income, age of each spouse, and any health issues that prevent full-time work. Other factors include the present and future needs of children and conduct during the marriage such as abuse, adultery or abandonment.

Check out our Massachusetts Alimony Calculator

What if I need financial support during the divorce?

You can file a Temporary Order that requires payment of alimony and child support until the judge signs a final order.

How is eligibility for alimony determined?

Eligibility is determined by the ability of each spouse to maintain a standard of living similar to the one acquired during the marriage. Job skills, age, and health issues are all considered when determining whether a spouse needs alimony. Most alimony is transitional or rehabilitative to allow a spouse time to adjust to independent living. Permanent awards are reserved for marriages lasting over 20 years where one spouse worked only as a homemaker.

How is the duration of alimony determined?

Circumstances listed above determine duration as well as the length of a marriage. Marriages lasting 20 years or more may result in indefinite alimony while those less than five years may not produce an alimony period over one year.

What is separate maintenance?

This is similar to alimony in that it is a way for one spouse to support the other, however, it occurs during separation, not after divorce.

If I get remarried and receive alimony from a previous marriage, will those payments cease?

Alimony may end if you get remarried unless there is a significant reason why it must continue. It is difficult to maintain alimony judgments after remarriage.

What are reasons for modifying alimony in Massachusetts?

Alimony may end or change if the payor spouse faces an employment change or moves to another state. If health problems or retirement change income levels, the payor spouse can file to request a modification.

Can I make my former spouse pay legal fees if they continue to drag out divorce proceedings?

If you have limited financial means, you can ask the court to order your spouse to help pay for your attorney. An attorney fee award can also be included in the final divorce order if you believe your spouse acted in bad faith throughout the proceedings.

How are debts divided?

Just as property is divided, so are debts. When couples cannot agree on debt assignment, the judge will determine division based on age, health, employment skills, earning capacity, liabilities, needs, and prospects regarding capital assets and real estate for each party. Division of debt is determined more by the ability to pay rather than who is responsible for the debt unless it was incurred before marriage.

Child Custody

What are the types of child custody in MA?

Types of child custody include legal, physical, and visitation. Legal custody defines which parent makes decisions about education, health care, and religion. This is normally granted to both parents. Physical custody is where the child lives and visitation refers to the rights of the non-custodial parent to spend time with their child.

How do I modify our child custody agreement?

To modify a child custody agreement, you must file a Complaint for Modification that pleads substantial changes of circumstances since the Final Order was approved. It must contain new facts or facts not known at the time of the last order. You cannot relitigate previous issues just because you believe the original order was wrong.

Does Massachusetts require specific circumstances to modify a custody agreement?

Yes. Courts are reluctant to change custody arrangements unless the party filing the action shows their home is substantially better for the child. However, if your homes are equally good, there will not be a change.

If your circumstances improved while the other parent’s decreased then you have a chance of modifying a custody order. Reasons courts changed custody orders include toxic remarriage, recent drug or alcohol abuse, failure in school, denial of rights for noncustodial parent, and unwillingness or inability to attend to a child’s needs.

What factors are considered in child custody agreements?

A judge may consider who has been the priority caregiver, how the child is doing in their current situation, effects on school performance, whether the child would have to switch schools, the quality time each parent can spend with the child, and the child’s preference. The preference is for stability even if the other parent also offers a good home environment.

On average, who is more likely to get custody– the mother or the father?

Even in this day and age, mothers are more likely to secure custody because they act as the primary caregiver. As gender roles adjust, this is equalizing as fathers also gain custody when they request it. Courts focus less on the gender of the parents and more on who provides the most direct care to the children (getting them ready for school, doctor appointments, extra curricular activity attendance, etc).

What level of input do the children receive in custody decisions?

Self-aware children who have strong opinions may communicate preferences in custody to the judge. If children have the maturity to report their needs and preferences, there can be an opportunity for them to discuss this with the judge. But be aware that a child’s preferences are considered but no controlling in a custody decision.

How are custody agreements modified if one of us moves out of state?

Modifications reflect the best interest of the child as well as convenience for the parents. For example, an every-other-weekend arrangement may adjust to half the summer or half of all school holidays to make traveling easier. There will also be stipulations on who pays which travel expenses for the child.

That said, a judge will only allow relocation if it fits with a child’s best interests. If it is better for the child to stay in the area, then custody may be transferred to the parent who is not moving.

What is a temporary child custody order?

Parties may agree to a temporary child custody order until the divorce process is complete so the children are assured some stability. This order also includes child support payments.

When do courts order a child custody evaluation?

Courts order child custody evaluations when custody is disputed. This is done to assess the best interest of the child and the home where they will thrive. It is an involved process that is often psychologically challenging for all involved, especially the children.

What do these evaluations entail?

The evaluator meets with all parties involved in the custody decision including parents, doctors, psychologists, teachers, and caregivers. Parents may be subjected to a psychological profile if there are claims of mental instability or substance abuse. The intention is to determine who the children are most bonded to and where they are most likely to thrive after the divorce is finished.

If I do not have sole custody, how is the amount of time I get with my child(ren) determined?

Time with your children depends on how you interact with your child and the relationship that already exists between you. Depending on circumstances, you may receive alternating weekends and a week night or the judge may determine it is more appropriate that you start with supervised time with your child. If you were largely an absentee parent, do not expect much time at first until you prove your commitment.

How is the duration of child support determined?

The duration of child support payments is set by statutes. They remain due until emancipation, age 18 or age 21 if the child still requires support, as with current college attendance.

There are no other grounds to terminate child support. Even if your income substantially decreases, you can only attempt to reduce the amount of the payment.

If my spouse has children from a previous marriage, can I try to get visitation rights?

If you can prove your relationship with your stepchildren is significant and it is in their best interest that it remains intact, you may receive visitation rights. However, the only way to guarantee this is if you adopted the child. Stepparents do not normally have visitation rights.

Property

How is property divided after divorce?

Property division can be complex, especially if there are assets one party owned before the marriage. Many parties agree to property division without litigation. If there is no agreement, the court will determine how to divide property in the most equitable way possible. This requires consideration of each party’s current assets and earning ability.

How is it determined who gets to keep the house?

Generally, whoever wants the house gets to keep it. Usually, that is the parent who maintains custody of the children as a way to minimize disruption in their lives.

There are three options you can consider for the marital residence. One is to continue holding it jointly for the benefit of the children. This is frequently visited when the custodial parent cannot afford to keep the house on their own and requires assistance.

The second is to sell the home and split the equity between the parties. This allows for a fresh start and clean break, but it removes children from the only home they may remember.

Finally, there is also the option to cash out the other party and keep the home as a separate asset. You can do this by refinancing the home in your name alone.

Even if one of these sounds very appealing, there are tax and financial impacts you may not anticipate. Discuss your decision with an attorney.

Who gets to keep the pet(s)?

While pets are valued family members to many, Massachusetts law still treats them as marital property. The tendency of courts is to treat this issue much like they do with child custody by assigning pets to their primary caregiver.

What happens if my spouse and I own a business together?

Generally, the business is evaluated and one partner cashes out the other based on the results of that analysis. If you remain amicable, it is likely you can continue running it together. Otherwise, you may have to come to an agreement to sell the business and divide the profits or arrange to cash-out the other party.

More on Divorcing while owning a business here

What is marital property?

Marital property refers to all the possessions, real estate, and interests acquired during a marriage. Since Massachusetts is not a community property state, all property division must be equitable between the parties.