Who can file for divorce in Massachusetts?
In order to file a Massachusetts divorce case, either (1) the grounds for divorce must have occurred in Massachusetts and one spouse is still a Massachusetts resident; or (2) the filing spouse must have been a resident of Massachusetts for one year. The divorce should be filed in the county where the parties last lived as husband/wife. If neither spouse is currently in that county, then the divorce may be filed where either party currently resides.
What is an uncontested case?
A divorce proceeding in which there are no disputes as far as the legal issues. Both parties tend to agree on all matters and are typically just ready for the whole process to be over with. What is a contested case?
The minute the complaint or summons is filed the case becomes contested, and is contested until all disputes are resolved, such as support, custody, visitation, and division of assets.
What is meant by "grounds for divorce"?
A "ground" for divorce is a "reason" for divorce. A set of judicially recognized reasons for divorce exist in Massachusetts. A divorce may be granted on any of the following grounds:
1. Adultery
2. Impotency
3. Desertion for at least one year
4. Addiction to drugs/alcohol
5. Cruel and abusive treatment
6. Refusal to support spouse when able
7. Confinement in penal institution for 5 or more years
8. Irretrievable breakdown of the marriage
If spouses agree on everything do they need an attorney?
If you are going to have an uncontested divorce and you both agree on everything it is still recommended that you hire an attorney to review the papers and make sure everything seems fair. You may be surprised what happens if you do not. A lot of people end up signing what they thought was discussed but actually was not.
Can I get more money if the divorce was not my fault?
Most likely not, because the Commonwealth of Massachusetts does not weigh in marital behavior when making asset distribution decisions, or awarding alimony.
What does the term "Alimony” (or, "spousal support") mean?
"Alimony" (sometimes called "spousal support") is money paid by one spouse to the other due to the payee spouse's loss of the benefit of the payor spouse's income due to the divorce. Alimony may be awarded to either spouse for their support after the divorce. Alimony payments are designed to help with financial obligations of the receiving spouse and to maintain a similar lifestyle. The lifestyle can not remain the same due to the paying spouse typically having to maintain two households for a period of time. Since a majority of spouses both work rewarding alimony is not extremely common although it does exist. Most of the time alimony is rewarded for a short period of time just to help the receiving spouse get on his or her feet again.
Is Alimony available while the divorce is pending in court, or only after the divorce has become final?
The court may order that one spouse support the other during the pendancy of the divorce action and/or after the divorce has become final. Support awarded pending the final decree of divorce is not to extend beyond the period of time necessary for the prosecution of the divorce action. Either party to a divorce may be ordered to pay alimony to the other spouse. In determining the amount and nature of the alimony award, the court will consider certain factors.
What is child custody and visitation?
"Child custody" refers to which parent will have legal custody of the child(ren), i.e. with whom the child(ren) will live. "Visitation" is the topic of the non-custodial parent's ability to visit/spend time with the child(ren). The court may award custody to either parent, regardless of sex, subject to the best interests of the child. In determining the child's best interests, the court shall consider certain factors.
What is Legal Custody as opposed to Physical Custody?
Legal custody is the legal authority to make or help make significant decisions regarding the child such as his or her health care and general well-being. Physical custody refers to where the child physically lives. These custody arrangements can be sole or shared.
How are children handled in the Family Court?
The needs, desires and best interests of the children are considered by the judge. In fact, Massachusetts now requires that each parent complete an approved Parenting Education Course prior to the dissolution of the marriage so that issues effecting the welfare of the children can be appreciated and the ill-effects of the break-up of the family unit minimized.
Do all spouses have the right to visitation?
Typically the spouse who does not have physical custody of the child has the legal right to visitation. These rights can be withheld if evidence can be brought forth proving that it is in the best interest of the child not to see the spouse ( examples: excessive use of alcohol, physical or verbal abusiveness). The amount and schedule of visitation is stated in the final agreement.
Can a visitation schedule be modified?
Visitation schedules are often established as a test. Either spouse does not know what the future will tell as far as how their parent child relationship will grow. Typically visitation schedules do change and it is done with out the use of the court, but if need be the court will make a decision if a spouse is being deprived of visitation rights.
What is a typical visitation schedule?
The noncustodial parent will often have the child every other weekend and one or two evenings per week. There are many variations however that can be worked out by the parties or determined by a judge.
What is "child support"?
Child support is money paid by the non-custodial parent to the custodial parent in order to meet the needs of the child(ren). Massachusetts has guidelines for determining the amount of support that should be provided for a child or children. The guidelines have a percentage of annual income relation to how many children. It is not uncommon for parents to agree on the amount of child support. If they can not the court will use the guidelines in determining the amount. The court may deviate from the guidelines if the application of the guidelines would be unjust or inappropriate under the circumstances.
Is child support taxable?
No, it is neither taxable to the receiving parent nor deductible to the paying ex-spouse.
How long is Child Support payable?
Child support is paid until a child is legally "emancipated" which is generally age 18 unless the child is a full time student and principally dependent upon the custodial parent for support in which case it can continue to age 23. A child's living in a dorm is not considered evidence of "emancipation" but marriage or enlisting in the military would be.
If a parent remarries, how is the new spouse's income viewed for child support?
If the new spouse has an income, it is not considered for support, because he or she has no legal attachment to provide support to a child. The additional income may allow the supporting parent to spend less, so more money might be available for the monthly support payments.
What about medical insurance for the children?
In Massachusetts this issue is typically addressed and taken care of in the Marital Settlement Agreement. It is important for the child or children to
have coverage during the divorce process. A decision is made between the two parties, but it is the responsibility of the parent who can provide coverage due to his or her employment.
If the paying spouse files for bankruptcy is he or she obligated to make support payments?
Yes. The federal law does not allow any child support or alimony payments to be discharged. Basically the paying spouse is responsible for support for the time period stated in the order, unless modification of some sort is made.
Is college tuition a part of child support in Massachusetts?
This all depends on the order that was granted by the court prior to the child attending college. If college tuition was not part of the order then you must refile for modification to prove to the court that the child is doing well and it is in his or her best interest to remain in college. At this point the court will make a judgment whether the support should continue through school and that if more money should be paid to finance part of the tuition bills.
Can custody arrangements, child support or visitation ever be changed after the divorce?
Yes, a Complaint for Modification may be filed seeking changes where there has been a "material change in circumstances".
On what basis does the court decide how marital property is divided?
The court may assign to either spouse all or part of the estate of the other spouse after consideration of the following factors:
1. The length of the marriage
2. The conduct of the parties during the marriage
3. The age, health, station, occupation, amount and sources of income
4. The vocational skills and employability of the parties
5. The estate, liabilities and needs of each party
6. The opportunity of each party for future acquisition of capital assets and income
7. The present and future needs of any dependent children of the marriage
8. The contribution of each party to the acquisition, preservation or appreciation in value of their respective estates
9. The contribution of each of the parties as a homemaker to the family unit.
How are debts obtained during a marriage divided in divorce in the Commonwealth of Massachusetts?
Debts are not uncommon at a time of divorce. Often times this is what may instigate the problems that lead a couple down the road to separation. Most attorneys will attempt to settle the debt disputes in the Marital Settlement Agreement, because it is during the process of divorce that the couple should typically withdraw from all joint bank accounts.
How can one expect to be charged by an attorney?
There are two different types of fee arrangements as follows:
Fixed Fee- this type of arrangement means that the attorney has a flat rate for settling divorces. Of course the flat rate may vary from one client to another depending on the situation, but a set fee is decided before the process begins.
Hourly fee- some attorneys charge by the hour.
Retainer fee- This is a reserve paid by the client to the attorney for future legal fees and costs. Any unused retainer fee is returned to the client.
Links
Massachusetts Divorce Law
Family Law: Separation and Divorce
Paternity Law In Massachusetts
Grandparents Visitation Rights in Massachusetts
Massachusetts Child Support Calculator
Filing the Divorce Action
Filing for Separation
Massachusetts Child Support Collections
Massachusetts Child Custody and Visitation
Massachusetts Law About Child Support
Guardianship and Conservatorship
Name Changes
Parenting Leave Issues in the Workplace
Adoption
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