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If you live in Massachusetts and wish to file for divorce, you may not know where to begin. Here is a list to help you get the process underway:
- Verify whether you can file in Massachusetts.
Certain residency requirements must be met for a Massachusetts court to accept a divorce petition. A divorce case can be handled in Massachusetts if either spouse has lived in the state for at least one year before filing, or if the reason the marriage ended happened in Massachusetts and you have lived in the state as a couple.
This might be the most important step in beginning the divorce process. Divorce is complicated and confusing, no matter how early in the process. Emotions may cloud your ability to make decisions that will influence the rest of your life. Contact an experienced family law attorney for advice on all aspects of your divorce petition. You will feel at ease and grateful to have a family lawyer to guide you through the many complex steps of getting a divorce. A “fault” divorce in particular requires the expertise of a seasoned Massachusetts family law attorney.
In fact, you should ask an attorney for advice and information if you are even considering ending your marriage. Divorce is a life-changing decision and should not be made impulsively. Gather as much information as you can about your options. Ask your lawyer about divorce, separation, support, and all of the steps along the way.
- Choose which type of Massachusetts divorce to file.
A divorce may be filed as “no-fault” or “fault” in Massachusetts, and can be either contested or uncontested. Choose which type is right for you before filing.
A Massachusetts “No fault” divorce is exactly what the term would suggest: the marriage is indisputably broken beyond repair but neither spouse blames the other. Most people file for “no fault” divorce on the grounds of “irretrievable breakdown of marriage”. On the other hand, there are seven grounds for a “fault” divorce, in which a single spouse is considered at fault for causing the marriage to break down.
A divorce is contested when one spouse disagrees with the divorce or its terms, whereas a divorce is uncontested if both parties mutually agree on all terms of the divorce petition.
Under Massachusetts law, a spouse can file for divorce in three specific ways: First, a joint petition, typically an uncontested No Fault “1A” Divorce. Here, both spouses agree that the marriage is irretrievably broken and they have reached a written agreement on all terms, including child support, custody, visitation, alimony, life and health insurance, and the division of marital property and debt.
Second, one spouse can file an individual complaint, typically a contested No Fault “1B” divorce. This option is best for when only one spouse believes the marriage is broken beyond repair, or both spouses agree the marriage has ended but cannot agree on its terms for divorce settlement. If you and your spouse can eventually come to an agreement, you can request to change the divorce complaint from a “1B” divorce (no-fault, but contested terms) to a “1A” divorce (no fault and uncontested terms).
Lastly, one spouse can file an individual complaint that states that the other spouse is a fault and caused the divorce. In a “fault” divorce, the person petitioning for divorce must prove facts to support one or more of the following grounds:
- Gross and confirmed habits of intoxication
- Cruel and abusive treatment
- A prison sentence of five or more years
A “fault” divorce is often more expensive and lengthy than a “no fault” divorce.
- Gather the necessary paperwork.
Compile important paperwork and make copies for your records. It would be prudent to keep copies outside of the marital home. Dig up the last three years of taxes, property tax bills, mortgage statements, bank statements, pay stubs, credit card statements, and any other financial documentation you think will be important. Order or get hold of a certified copy of your marriage certificate from the town clerk in the town in which you obtained your marriage license. A certificate from the church is not a substitute for the municipal certificate.
Consult Massachusetts Supplemental Rule 410 for information on what documents both parties must provide upon filing with the court.
- Consider drafting a Separation Agreement with your spouse.
You may decide to generate a separation agreement between you and your soon-to-be-ex-spouse detailing arrangements for when you are living apart and matters relating to the end of your marriage. This written agreement should deal with division of assets, marital property, debts, custody, visitation, child support, alimony, health and life insurance. Massachusetts Divorce Separation agreements are reflections of uncontested divorces because both spouses negotiated the terms, rather than a having a trial in which the judge drafts the terms for divorce.
- Fill out the required forms.
Both 1A and 1B forms ask for the date on which the marriage became “irretrievably broken.” If you cannot recall the date you realized your marriage was over, you could list the date either spouse moved out of the marital home.
Certain documentation must accompany your divorce petition. If either spouse owns real estate, the books and pages for all deeds are required. Also required is the certified copy of your marriage certificate.
The required forms may vary depending on the type of divorce for which you intend to file. For the more common uncontested divorce, be sure to include with your joint petition for divorce form (“1A”), a certificate of absolute divorce or annulment, a separation agreement, and an affidavit from both parties attesting to an irretrievable breakdown of the marriage.
- File your petition for divorce.
Regardless of which route you decide to take, Massachusetts Probate and Family Courts charge a fee for filing a divorce petition. If you worry you cannot afford the filing costs, you can ask the court to waive the fee by submitting an affidavit of indigency with your petition. The court is supposed to forgive certain filings fees for people on welfare or with an income of 125% or less of the current poverty threshold.
Visit the courts website for a list of cities and their courts for answers on how and where to file for divorce. The clerk will receive your file, approve and stamp it, and you should ask for a stamped copy. You will then receive a domestic relations summons. You can complete service of process on the defendant by arranging for a sheriff or constable to give a copy of the complaint and summons to your spouse. As you proceed through the divorce, either party may ask the court for temporary orders.
If your case becomes the least bit complicated, or you are unsure about how to proceed, confer with your lawyer to protect your interests.
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