Divorce is a legal termination of the marital relationship whereby any one party to a marriage can petition for a divorce and receive it without the consent of the other party. To be granted a divorce by the court, you do have to allege a ground or reason for it and meet the residency requirements. In regards to grounds for the divorce, Massachusetts gives you the option of a no-fault divorce or one based on either of 7 specific grounds.
If you are considering a divorce, you should be aware of the process involved, what it entails, as well as your rights and those of your spouse. The following is a summary of the divorce process, costs, time, and typical issues.
Court Costs and Legal Fees
It costs $215 to file a complaint for divorce plus $5.00 for the summons to be served. You will have to pay a process server to serve the documents on your spouse if the divorce is contested, which is usually $135. Legal fees vary considerably. Most attorneys charge a retainer fee and work by the hour. When the retainer is used up, the client will have to deposit an additional sum. If the divorce is contested and experts such as accountants or psychologists are retained, the costs can reach $20,000 or more.
Jurisdiction and Residency
Complaints and Petitions for divorce are filed in the Probate Court in the appropriate county. Before you can file, either you or your spouse must be a Massachusetts resident. If the cause or grounds for the divorce occurred outside the state, you must have resided here for at least one year if you are the one filing. You can file your petition in either the county where you are residing or where your spouse is living. If either party is still living in the county where they last lived together, then the matter will be heard there. Further, there is no need for the parties to be separated before filing.
Grounds for Divorce
When filing, you have to allege a reason. Massachusetts offers you a choice between no-fault and grounds-based divorce. No-fault is the simplest since you need merely allege an irretrievable breakdown of the marriage without the need to offer proof. Your spouse cannot challenge your request for the divorce but may ask for or be entitled to alimony, child support, and a distribution of the martial property that is not 50/50. You can also file a joint petition for divorce, which will be no-fault.
If you wish to pursue the other option for divorce and allege a grounds for the divorce other than irretrievable breakdown, it must be one or more of the following:
- Abandonment or desertion without support for at least one year prior to filing
- Addiction to alcohol or drugs
- Cruel and abusive treatment
- Refusal to provide suitable support and maintenance for the other spouse although capable of providing it
- Incarceration for over 5-years
Alleging any of these grounds is not necessarily an advantage over no-fault and confers no benefit to the alleging party since the same issues regarding custody, child support, property distribution, and alimony are decided under no-fault. If you are unable to prove the alleged grounds, the court could decide not to grant the divorce, though you can then opt for no-fault.
Issues in Typical Divorce Cases
Child Support and Custody
When you file a petition and child custody and/or support are issues, both parties are required to file financial statements listing gross income, expenses, and debts. Custody is determined by what is in the child’s best interests and may entail a court investigation regarding your fitness, ability to provide and support the child, your living arrangements, the community where the child is to live, and other factors. If you are not to be the child’s primary custodian, then you will likely have to pay a monthly amount to the other parent.
Child support is determined by using a worksheet to calculate the monthly amount. A court can deviate from the guidelines if there are unusual expenses involved such as for medical or educational needs.
Alimony, or spousal maintenance, is generally granted if there exists a fairly significant disparity in the parties’ financial circumstances. There are numerous factors that a court reviews to determine if alimony should be awarded and in what amount including the duration of the marriage, age and health of the parties, earning capacity, as well as their relative financial situation among others.
Massachusetts is an equitable distribution state, meaning that the marital property, or that property including income, assets, real and personal property acquired or accumulated by either spouse during the marriage and before separation, may be divided based on the equities of the parties’ circumstances. Sometimes property that either party accumulated before the marriage may also be considered in the property distribution.
In determining the fair distribution of the marital property, the court takes into consideration many of the same factors involved in deciding whether and how much alimony to grant. One other factor is the contribution each spouse made to the acquisition, preservation, and appreciation in value of the marital assets.
In some cases, domestic abuse is an issue where one spouse has been threatening or physically assaulting the other. In such cases, we can obtain a restraining or protective order for you that bars the other spouse from contacting you or your children, removes the spouse from the home, and provides you temporary financial support until hearings are held.
Alternatives to divorce are annulment or legal separation.
An annulment is a process whereby the court determines that your marriage was void or is voidable. If void, it was never legitimate or legal in the first place. For instance, your spouse was still married when he or she married you. Also, the marriage may be annulled as void if you marry your brother, sister, grandparent, uncle or aunt, nieces or nephews.
A voidable marriage is one where you can still choose to remain married but it can be declared null and void. Examples are:
- A spouse lacked the mental capacity to consent to marriage (too drunk or high or mentally ill)
- One spouse is impotent or otherwise incapable of engaging in sexual intercourse
- A spouse is under the age of 18 (but may get parental permission)
- Fraud in the marriage–unless you knew or should have known of the fraud (e.g., sham marriage for immigration purposes)
For uncontested divorces, the time from when you file your documents to having the judge sign the final decree is usually 120-days, or 4-months from the date the court issues a Judgment Nisi. If contested but the parties settle within 6-months of filing, it becomes final 90-days from the date the Judgement Nisi is issued.
Consult Boston Divorce Lawyer Heather M. Ward
Heather Ward is a divorce attorney who represents persons from all backgrounds and financial circumstances. Divorce does not need to be expensive or overly contentious in most cases. Ms. Ward will use her knowledge, skills, and experience in ensuring that your rights are protected and all issues settled fairly. Call her today at (617) 903-8955 for any questions you have concerning the divorce process.