How do I get divorced in Massachusetts?

There are three ways to divorce in the Commonwealth; in the first two cases, the grounds for divorce are the irretrievable breakdown of the marriage:

  • A 1A Joint Petition requires that both you and your spouse agree on all aspects of the divorce, including custody, child support, alimony, and distribution of marital assets and debts. A professional mediator helps you to reach this level of detailed agreement prior to filing with the Court. With this method of divorce, there is no plaintiff or defendant; you are equal petitioners and there is no lawsuit.
  • A 1B Complaint for Divorce is filed by one party who wishes to proceed with a divorce. In this case, one spouse sues the other for divorce, and the Court determines the outcome of all issues, including child custody and financial arrangements. Although most 1B cases settle before trial, they do so within an adversarial arena, in the shadow of the judicial system.
  • A Fault Divorce is a lawsuit in which the plaintiff alleges a specific reason as cause for the divorce. Fault divorces are rare in Massachusetts because they require a very high standard of proof and because most judges believe that “fault” is not the issue.

What is the most effective way to resolve conflict in a divorce?

The details of each divorce are different, though most divorces are difficult and stressful. Litigation—by its nature, combative—remains the most common route to divorce; however, in recent years, effective non-adversarial approaches have become more popular and are my preferred methods:

  • Mediation: A trained professional facilitates a fair agreement between people in conflict. All parties come to the table to hear and be heard, and to negotiate a solution. The goal of every mediation is win-win.
  • Collaborative Process: A revolutionary approach to divorce, this process brings each party and his or her attorney to the table. The attorneys act as advocates for their clients, while all work together as a committed team to reach a mutually acceptable agreement that is “fair and reasonable.” Often other professionals, such as a coach or financial specialist, will be added to the team.
  • Litigation: The “my lawyer can beat up your lawyer” approach to conflict resolution. The court system is based on an adversarial process that presumes if you tell your story and I tell mine, the Family Court Judge will know the Truth. Unfortunately, litigation can take an enormous financial and emotional toll on the entire family. The results are in the hands of the Court, rather than within your control. And no one wins.

What happens to our house? Will we have to sell? Can the children and I still live there?

Often the most difficult issue to resolve, aside from child custody, is the fate of your house. We all have many memories and feelings tied to our family home, as well as a significant financial investment. In fact, the marital home is often a marriage’s major asset. As a result, in order to divide assets equitably, you may have to sell your home in order for you and your ex-spouse to have enough money available after the divorce for each to find a suitable place of your own. Whether one of you will be able to maintain your family home and live there with your children after the divorce depends upon your family’s unique financial circumstances.

Am I going to lose my kids?

Until an order of the Probate and Family Court declares otherwise, you and your spouse share legal custody of your children. If you are married, you have joint legal custody until the Court orders a different arrangement. What used to be called physical custody of children is now described in terms of the child’s primary residence, and visitation is now referred to as parenting time. As fathers are now more involved in child-rearing and mothers more often employed outside the home, we are seeing more situations where a divorce incorporates a shared Parenting Plan that recognizes how each parent plays a significant role in the lives of their children.

What do I do if my spouse is violent and I feel that I and/or my children are in danger?

If you are in danger of imminent physical harm from a family member, former household member, close friend or romantic partner, you can apply for a 209A Order for Prevention from Abuse. A 209A Order can be issued by the Probate and Family Court or by the District Court. While it is essential to get legal protection if you feel your life or your children’s lives are in danger, this process should never be used as a “strategy” in a divorce. That said, please remember that if you believe that you or your children are in imminent danger of physical harm, you should immediately call 911.

Will I have to go back to work full-time?

Both parents have a legal obligation to support their children. Your financial needs and resources will determine whether either or both of you have to obtain additional employment. These matters are case-specific and lend themselves to good-faith negotiation.

How do child support and alimony work in Massachusetts?

The federal government mandates that each state have Child Support Guidelines, which are reviewed every four years. The current Massachusetts Guidelines apply to all divorcing families with dependent children where the parents earn up to $250,000 annually. The current guidelines presume that the spouse receiving child support has the children for about 70 percent of the time and that the spouse paying child support has the children for the remaining 30 percent of the time. If you have a shared parenting arrangement, where your children are with each of you approximately half the time, you may still have a child support component to your agreement if your earnings are not also approximately equal.

Who pays for college for our children?

In Massachusetts, if you are divorced or have a child out of wedlock, you have a legal obligation to educate your child through college. Lawyers and judges often use a financial standard that requires you to pay for the equivalent of attending UMass Amherst for any given year. Some judges will allocate a third of the cost to each parent and the remaining third to the child attending college.

Can I keep my retirement income?

Your retirement funds are included in the marital “pot” along with all other assets and debts of each party. It doesn’t matter whose name is on the asset or debt in question. Who gets what depends on how the pot is divided; you may wind up keeping your 401(k) and your ex-spouse may end up keeping his or her IRA, but it will depend on many criteria. Ultimately, your Agreement must be presented to a Justice of the Probate and Family Court in your district for approval. Only after the judge has found your Agreement to be fair and reasonable will you know which assets will be divided and which will remain with the person whose name currently appears on each asset.

What is equitable distribution? What is community property?

Massachusetts is an equitable distribution jurisdiction. Equitable distribution means that there is a fair and reasonable division of all marital property, including everything each of you brought into your marriage, everything accumulated during your marriage, and everything inherited during your marriage. An equitable distribution may not be equal, and often it is not; the determination is governed by Massachusetts General Laws Chapter 208 Section 34. There are only nine community property states in the United States: Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin. In a community property jurisdiction, half of everything accumulated during a marriage goes to each party. No such rule applies in Massachusetts.

How long does it take to get divorced?

Every divorce granted in Massachusetts requires a minimum 90-day waiting period called the Nisi (neye-seye) Period. Our judicial system anticipates that it can take up to 14 months from the time a Divorce Complaint is filed until a Final Judgment of Divorce is issued. Unfortunately, if a divorce goes to trial, it can take two to three years before the Judgment Absolute issues from the Court.

What will it cost?

Costs vary from case to case, and fees vary from attorney to attorney. My fees are based on an hourly rate of $300. For mediation services, my clients share the cost and pay by the hour. For collaborative process and litigation services, I require an up-front retainer, which varies with the anticipated complexity of the case. For example, if custody is at issue, the retainer will reflect the likelihood of protracted litigation. At our free initial half-hour consultation, we can discuss the probable cost of your divorce.

Do I have to take a parenting class?

In Massachusetts, every parent of a child under 18 must take a parenting course unless excused by the Court. This course focuses on how divorce affects your children and emphasizes the importance of co-parenting and of placing a priority on your children’s needs.The course is offered at various locations throughout the Commonwealth for a fee of $80 per person. Since the agencies offering this program are not equipped to screen for domestic violence, each of you is asked to take the course at a different location or time than your partner. This arrangement allows one of you to care for your children while the other is in class.

How do we know if we can mediate?

I offer a free half-hour consultation to all couples considering mediation. Getting a feel for being at the table together and getting a sense of the process is an excellent way to determine if you are good mediation candidates. If you can come to the table in good faith, you can mediate at least some of your issues. Each individual’s understanding of what is fair is different. In mediation, I provide an environment in which the two adults most affected by the divorce have an opportunity to share their ideas and feelings with each other and to come to a mutually acceptable agreement.

How do I get through this?

There are many excellent books and other resources for separating and divorcing partners. Please visit the Resources section of my website for suggestions. This is also a great time to find a therapist or support group run by a professional facilitator. No matter how wonderful your family and friends, they can’t be objective about your circumstances. Friends are an invaluable source of emotional support, but only a professional can give you objective therapeutic, financial, or legal advice at this time.Trust that there is a light at the end of the tunnel, even though it’s often hard to believe at the beginning of what is often a traumatic and public experience of failure. Divorce is also an opportunity to heal and grow, a chance to understand yourself and your life with greater insight, a chance to start over and live up to your full potential.