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So, you have made the major life decision to get a divorce, but now what? Well, that question can be difficult to answer without knowing the specifics of your case. However, there are 6 surefire steps to take in the beginning of any Massachusetts divorce.
1. Decide whether you will file an uncontested or contested divorce.
The first step in the divorce process is to determine whether your spouse is on the same page as you. That is, do you agree on all the issues surrounding the divorce? If you do, then you are probably eligible for an uncontested divorce. The “issues” surrounding a divorce include, property division, alimony, child support, and child custody. Uncontested divorces are a much easier and cheaper road to a final divorce judgment.
On the other hand, when you and your spouse do not agree on all issues surrounding the divorce, you’ve been through negotiations and/or mediation, and you still can’t agree, then you probably have a contested divorce. Contested divorces are more lengthy and pricey because you must negotiate all the issues and will most likely have to hire an attorney.
2. Decide whether you will file a fault or no-fault grounds divorce.
The next step you must take is to decide what grounds for divorce you will file under. Grounds for divorce are the legal reasons you are choosing to get a divorce. No-fault grounds is the irretrievable breakdown of the marriage, where neither party is at fault.
Fault grounds in Massachusetts include: adultery, desertion, gross and confirmed habits of intoxication, cruel and abusive treatment, non-support, impotency, prison sentence of 5 or more years. Note that if you file under fault grounds you must prove it to the court, which comes at a price. The legal resources that go into proving fault can be much more timely and expensive than filing for divorce under no-fault grounds. Additionally, proving fault does not necessarily lead to a better outcome for you.
3. Decide whether you will proceed with an attorney or go “pro se.”
Third, decide whether you will hire an attorney or not. “Pro se” is just the legal term for getting a divorce without an attorney. In other words, you will be representing yourself in the divorce proceeding if you are a pro se litigant. Even if you choose to proceed without an attorney (i.e. pro se) you must still consult with a lawyer to get legal advice. Relying on information found online is often general and does not relate to the specifics of your case.
The one advantage of pro se litigation is, of course, no attorney fees. On the other hand, there are many disadvantages. You will have to put in a lot of time and effort to drafting necessary paperwork and appearing in court. You will have to educate yourself on the law and the legal procedures. Additionally, you may jeopardize your own case by lacking knowledge of certain legal rights.
4. Figure out the proper court in which to file the divorce.
There are two parts to this fourth step. First, you need to make sure you can actually file for divorce in the state of Massachusetts. Second, you must file the divorce in the Superior Court of the proper county.
First, 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. Second, you should file for divorce in the Superior Court of the county in which you or your spouse live in.
5. Gather and fill out the appropriate paperwork.
You will need to fill out the appropriate court forms and attain a certified copy of your civil marriage certificate. You can get a certified copy from the Registry of Vital Records or from the city or town hall where you applied for a marriage license. The appropriate court forms differ depending on your type of divorce case (i.e. uncontested, no-fault v. contested, fault).
For contested, no-fault divorce, you will need the following forms: (1) certified copy of marriage certificate, (2) complaint for divorce under section 1B (form CJD-101B), and (3) Certificate of Absolute Divorce (Form R-408) from the Registry of Vital Records.
For uncontested, no-fault divorce, you will need the following forms: (1) certified copy of marriage certificate, (2) separation agreement, (3) joint petition for divorce under section 1A (Form CJD-101A, signed by both parties), (4) affidavit of irretrievable breakdown (signed by both parties), and (5) record of Absolute Divorce (Form R-408) from the Registry of Vital Records.
For contested or uncontested, fault divorce, you will need the following forms: (1) certified copy of marriage certificate, (2) complaint for divorce (Form CJD101), and (3) record of Absolute Divorce from the Registry of Vital Records (Form R-408).
6. File the paperwork in the proper county.
If you are proceeding pro se, you need to take great caution in filling out the paperwork for your case. It should be noted that there are significant risks in drafting your own separation agreement. The separation agreement is extremely conclusive and cannot be changed later. Also, if any of the paperwork is incorrect, it can lead to more time and money being spent in the future. After filling out the paperwork, you must bring it to the Court in the proper county.
If you are planning on hiring an attorney, he or she will guide you through the paperwork process. Your attorney will file the paperwork in the proper court on your behalf. Remember, an attorney will only file the paperwork on your behalf if he or she is representing you. An attorney will not file paperwork on your behalf if he or she is merely advising you in an uncontested action.
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