An Introduction to Divorce

Dealing with Divorce

When you file for a divorce, you are seeking to legally end your marriage. Although a divorce is a court judgment ending a marriage, it does not necessarily end your financial relationship or contact with your spouse; especially if you have unemancipated children. How you and your spouse decide to engage in this legal process will have a direct effect on the emotional and financial aspects of your current and future lives.

The final outcome of a divorce can have a significant impact on your financial and parental rights. With so much at stake, you and your spouse should consider options for divorce that are more peaceful, rather than engage in contentious litigation. However, if you are in a situation with a spouse who is uncooperative, angry or rigid, it is essential that you have qualified and experienced legal counsel to protect your rights before, during and after your divorce.

Prerequisites for Filing in Massachusetts

In order to seek a divorce in Massachusetts, you must first prove you were married. Therefore, you must obtain a certified copy of your marriage certificate from the government department or agency who holds the record (usually, where you were married). A religious marriage document is not accepted, unless you can argue that there are exceptional circumstances. This requires special action, which may include a motion to bring your special circumstance before a judge for approval. In Massachusetts, you may obtain a certified copy of your marriage certificate from the city or town hall clerk’s office where you obtained your marriage license. You may also go the Massachusetts Registry of Vital Records, which holds the birth, death and marriage certificates filed in Massachusetts. Once you obtain the certified copy of your marriage certificate, it is file with the court at the time you file for divorce.

In order to file for a divorce in Massachusetts, you must file a complaint for divorce. This is a court form that either you or your attorney will fill out and file, along with other documents, such as your marriage certificate and other statistical and informational forms.

However, in order to file a complaint for divorce in Massachusetts, you must prove residency requirements are met in order for the family court clerk to accept your divorce case for filing. This is call “jurisdiction” and the divorce will not be accepted by the court for resolution unless the court has jurisdiction over both spouses. If the cause of the divorce occurred outside of Massachusetts, the party seeking the Massachusetts divorce must reside in Massachusetts for at least one year prior to the filing of the action. If the cause for divorce occurred within Massachusetts, at least one of the parties must be a Massachusetts resident at the time the cause occurred. A unique problem for same sex couples occurs when they reside in a state that does not recognize same sex marriage, so they cannot divorce in that state. Even if they married in Massachusetts, and moved to another state thereafter that does not recognize same sex marriage, then neither spouse can return to Massachusetts to get divorced without meeting the jurisdictional requirements, as stated above. This gap in the laws creates a significant problem in which a same sex couple can get married in Massachusetts, but they can’t return to get divorced until one of them meets the jurisdictional requirement. The US Supreme Court or legislation is likely to address this problem soon.

Actions for divorce shall be filed, heard, and determined in a Massachusetts Probate and Family Court in the county where the parties last lived together, as long as one of the parties continues to reside in that county. However, if neither party remains in the county where the parties last lived together, the action shall be heard and determined in the probate and family court in the county in which either spouse resides. In the event of inconvenience to either party, the court having jurisdiction to hear the case may transfer the case to a court in a county in which the inconvenienced party resides.

What is Dealt with During a Divorce

Although the facts of each divorce are unique, there are a number of considerations that are common in all divorces, whether there are children involved or not. In general, there will be a division of assets and debt and a determination of whether spousal or child support should be paid by one spouse to the other. Financial statements completed by each spouse should include not only income and living expenses, but also an itemization of assets (e.g. bank and investment accounts, retirement and pension accounts, stocks, real estate, trusts, collections, cash) and debt (e.g. charge cards, loans). The financial statement is the primary informational summary used by the judge and attorneys for determining the financial condition of the spouse submitting this statement. Will there be a need for spousal support or payment of child support? Will one spouse be able to remain in the former marital house? Is there a need for an abuse prevention order? Does a spouse want to resume her maiden name after divorce? All of these matters are part of the divorce resolution.

Type of Divorce Filing

In Massachusetts, a divorce is categorized as either a “no-fault” or “fault” divorce, and either of these can be contested or uncontested. “Contested” means that one spouse disagrees with the divorce or the terms of the divorce. “Uncontested” means that both spouses agree to 100% of the terms for settlement.

The person who files a contested divorce is known as the Plaintiff. The other party to the divorce is known as the Defendant. If the parties file an uncontested, no-fault divorce, then both parties are referred to as co-petitioners.