Contested Divorce

Going through a divorce can be emotionally wrenching for most people, especially if there are children involved. Property division can be just as heated as can the question of alimony or spousal maintenance. Divorcing couples are always encouraged to compromise or come to some agreement over these matters since legal fees add up quickly.

A contested divorce lawyer will see if there are matters that both parties can agree on and then outline what is or is likely in dispute. In some cases, the parties can go to mediation before a petition is filed to hopefully hammer out an acceptable parenting agreement, if applicable, and a satisfactory distribution of the assets and debts. Alimony may also be discussed and settled.

However, many parties are not ready to compromise or are unwilling to do so. Indeed, one party may be making unreasonable demands or making false allegations. Under these circumstances, you may have little choice but to proceed with a contested divorce.

Steps in a Contested Divorce

Litigation over the major issues in a divorce–custody, visitation, alimony, and property distribution–requires certain steps:

  1. Grounds for divorce

Massachusetts is a hybrid state when it comes to alleging grounds or the basis for the divorce. If you take the no-fault route, then you merely have to allege an “irretrievable breakdown of the marriage” and that neither party is at fault. You do have to make a choice if this is no-fault: (1) check off a “1A” divorce and that both parties are in agreement over custody, child support, parenting time, and the division of assets; or (2) check off “1B” and state that the marriage has been irretrievably broken but that these issues are contested.

Otherwise, you can allege certain grounds for the dissolution that you have to prove:

  • Adultery
  • Desertion
  • Cruel and abusive treatment
  • Non-support
  • Impotency
  • Gross and confirmed habits of intoxication
  • Imprisonment for more than 5-years

The complaint or petition is filed in the Probate and Family Court in the county where the spouses last lived together. You must have lived in Massachusetts for at least one year before filing if you allege the grounds for divorce occurred outside the state, or be a resident of the county if the grounds occurred in Massachusetts.

  1. Answer the Complaint

The defendant or party who was served with the complaint for divorce must file and serve an answer within 20-days of service on him or her, or be in default. The complaint has several documents with it including an automatic financial restraining order whereby the parties are barred from emptying bank accounts or otherwise disposing of property or assets, except for reasonable living expenses and legal fees. Neither may cancel life insurance, auto or medical insurance.

Also, each party must complete a financial statement that informs the court about each party’s income, expenses, assets, debts or liabilities.

  1. Discovery phase

In the time between service of the complaint and trial, there is the discovery phase. At this stage, the parties request and exchange financial information, medical and police reports and records, serve interrogatories and take the depositions of each party. The purpose of discovery is to obtain information about:

  • Income of the opposing party
  • If someone may be hiding assets
  • Discover why some assets seem to be disappearing
  • If you suspect that not all financial disclosures have been made
  • A party’s conduct toward the children
  • The financial condition of a party as it pertains to child support or alimony
  • Exploring allegations made regarding parenting

There are time limits on when a party must respond to discovery or face court sanctions. The court will also establish a time-line for when discovery will close.

Also, either party may obtain “temporary orders” while the divorce is pending. These include:

  • Motion for Temporary Support
  • Motion for Temporary Custody
  • Motion for Temporary Restraining Order
  • Motion for Attorneys’ Fees
  • Other motions regarding the family home, cars, furniture, visitation

If granted, the court order pertaining to the motion will remain in effect until the parties agree to a settlement or after a final hearing.

If children are involved and custody or parenting is at issue, a Guardian ad Litem may be appointed to conduct an investigation including interviews of the parents, teachers, caregivers or others involved in the child’s welfare. A report is prepared and submitted to the court with recommendations regarding custody and visitation.

  1. Mediation and Alternatives to Litigation

All parties in a contested divorce may decide to try mediation, which is voluntary in Massachusetts. This is a process where a neutral third party meets with the parties and tries to find common ground for a settlement. Your attorney should be present at the mediation and encourage you to find a compromise, if reasonable, with your spouse. Many cases are successfully resolved at mediation, which may take more than one session. If agreement is reached, the parties will usually sign a stipulation that will later be drafted into the divorce agreement.

Another form of alternative resolution is collaborative divorce. This involves private discussions between the attorneys but with jointly retained experts such as a financial adviser, business appraiser, child psychologist and others. The goal, of course, is settlement of all disputed issues without litigation.

Contested divorces in Massachusetts are placed on a time track of 14-months so that they do not linger in the system. If the case fails to resolve, the matter goes to trial. In some cases, a judge will extend the time.

  1. Trial

Should no settlement be reached, the parties will go to trial on the contested issues before a judge only. The parties will testify as well as various experts, if applicable and relevant, to support a party’s position. A judge will issue a ruling after the trial is concluded. Once the order is issued, there is a waiting period of 90-days before the divorce is official.

Contact the Law Office of Heather M. Ward

Heather Ward is a contested divorce lawyer from Boston who represents either party in a divorce proceeding. Her goal is to facilitate settlement of your issues without trial but will zealously advocate your position through litigation and trial if necessary.

Call her office today at (617) 903-8955 for a consultation regarding your marriage dissolution and for any other family law matters.