Contested Divorce Process
What are attorney fees?
At the beginning do the case, you will receive a written document, called an Engagement Letter or Retainer Agreement, which will set forth in detail your attorney’s hourly rates and other information regarding how you will be billed. You will be requested to give your attorney a retainer, which is a sum of money paid at the beginning of the case, against which hourly charges will be applied. If you have any questions about how you will be billed or how much you can expect to pay in attorney fees and costs, you should discuss this issue with your attorney at the beginning of the case, before signing the agreement.
Can my spouse pay my legal fees?
Although attorneys may request, where appropriate, that your spouse pay your legal fees– either during or at the end of the case– you remain ultimately responsible for payment of your attorney fees. These fees are an important aspect of your case that you must take into account when considering whether to negotiate settlement or proceed to trial.
Is it a binding contract for payment?
You should read over the retainer agreement carefully, since this document sets forth in detail the specifics of the understanding you have reached with your attorney regarding legal fees and costs. This is a binding contract for payment. If you have any questions about the retainer agreement, consult with an independent attorney prior to signing the agreement.
When does the process start?
A divorce is started in Court by the filing of a document called a Complaint. Your attorney will spend some time with you discussing the grounds for divorce including whether it will be a fault or no-fault divorce.
Why is no-fault the most common choice for divorce?
The most commonly used choice for divorce is the no-fault, or irretrievable breakdown of the marriage (either contested or uncontested). This is often the choice because there is no need for detailed testimony by either spouse that would be necessary to prove the “fault” ground, such as cruel and abusive treatment, desertion, excessive use of controlled substances or alcohol and adultery. Most proceedings are public, so this can be embarrassing for some people. The choice to file a fault or no-fault is very personal and you will be advised as to which grounds for divorce may be appropriate to your situation. It is also important to keep in mind that the ground you choose for divorce may have some bearing on the length of time it will take you to obtain a divorce.
What happens after the Complaint for Divorce has been filed?
After the Complaint for Divorce has been filed, the Court will issue a Summons. The Summons and a copy of the Complaint must be “served” or delivered to your spouse in accordance with legal requirement. This may be arranged between the attorneys for you and your spouse, delivered by a process server, or your spouse may voluntarily agree to “accept service.” You will have an opportunity to discuss how best to have the Summons and Complaint served upon your spouse.
What happens if my spouse files the complaint first?
If your spouse files a Complaint first, we will prepare and file an Answer to it and may file a Counterclaim also asking for a divorce.
What is a motion?
A Motion is simply a request, usually in writing, to the Court. The purpose of filing a Motion is to obtain a court order from the judge that will temporarily provide a solution to a particular problem. These are some examples of Motions that may be made prior during your case:
Motion for Temporary Support;
Motion for Temporary Custody;
Motion for Attorney Fees; and
Motion for Temporary Restraining Order.
The above list merely provides examples of Motions that may be filed in your case. They may not be necessary in your case, and various others types of motions may be appropriate for your situation.
Do I have to be present for court hearings?
As a general rule, the client must be present in Court for all hearings.
What is a Temporary Order?
An Order entered by the Court on a motion is a Temporary Order, which will usually remain in effect until there is a final hearing on your case. It is important to understand that the terms of temporary orders are no longer effective once the final judgment is in place, unless the final judgment/divorce agreement includes the terms of the temporary orders or other specific language exists in the orders.
What is Discovery?
Discovery is the term used to describe the formal ways in which the attorneys attempt to discover all the facts that will be important or relevant to your case prior to the trial or final hearing. This will probably involve both financial and non-financial information.
Why is Discovery necessary?
This part of the case is very important because it will provide your attorneys with the information necessary to enable them to recommend to you a fair settlement or resolution, or to present a complete case to the Court if it is necessary to proceed with a trial.
How long does this process take?
The length of time for discovery may vary according to various factors, which will include
the complexity of the issues involved;
the difficulty in obtaining the requested information;
the cooperation of your spouse, opposing counsel, record keepers of documents requested;
other commitments your attorney might have; and
the need to obtain outside expert advice with regard to certain aspects of the case, for example, real estate appraisals or the determination of value of a business by a business appraiser or accountant.
Almost every client wants to know how long this part of the case will take. It is important to keep in mind that it is impossible for an attorney to predict exactly how long the process may take. You will probably do yourself a disservice if you pressure for artificial deadlines in order to get the case over with. Quite often, haste interferes with the attorney’s ability to obtain full discovery of all the facts necessary to obtain the best results for you.
What could slow down the Discovery process?
Also, there are certain built in time periods that may prevent your attorney from moving as quickly as you may like. For example, if there is a discovery request that your spouse produce documents for review, then your spouse will have at least thirty (30) days within which to comply. This time period is set by the Massachusetts Rules of Domestic Relations Procedure. Similarly, by statute, a contested no fault divorce complaint must be on file at the Court for six (6) months before a trial can be scheduled. Also, after the divorce hearing, there is a mandatory waiting (“nisi”) period before a divorce is final. Rules and statutes such as these cannot be changed by an attorney.
What does the Financial Statement require?
Before the Court will enter any financial order or grant a divorce, the parties are required to complete a Financial Statement on a form provided by the Probate and Family Court. This form is designed to provide the Court with information about each party’s weekly income, expenses and a list of assets and liabilities.
Does my spouse have to complete one as well?
The Probate Court Financial Statement must be signed by each party personally, and it is signed under the pains and penalties of perjury. Therefore, it is extremely important that this form be completed thoroughly and accurately. You may be cross examined on this document in Court or at a deposition.
How do I complete my Financial Statement?
It will be necessary for you to review your own records in order to complete the form accurately. These records will include your canceled checks or check registers, income tax returns, bills and so on.
The important thing to remember is to be complete and accurate, and to make no assumptions regarding the ownership of assets or responsibility for payment of debts between yourself and your spouse. Since bank and investment accounts, as well as household bills fluctuate in balances, you should think of your Financial Statement as a “snapshot” of your financial picture as of the date you sign it. Sometimes there are anticipated future expenses. Any numbers that need clarification can be done with a footnoted explanation. Your attorney will help you make sure this very important court document is completed with the most accurate information.
How do I reach a decision through settlement?
In the event that the attorneys are able to negotiate a settlement, it will be reduced to a written Separation Agreement, also known as a divorce agreement. This agreement will be submitted to the Court for review and approval. In deciding whether to approve the agreement, the Court will review the Financial Statements to determine whether the agreement is fair and reasonable. If the Court determines that the agreement is fair and reasonable, it will incorporate all or part of the agreement into your Judgment of Divorce.
Are the terms in the separation agreement final?
There are certain terms that you may want to be final and not subject to change in the future. Your attorney will discuss each issue for settlement and advise you on whether that issue is subject to modification in the future. For example, issues regarding alimony, periodic payments of debt, health and life insurance coverage may be something that you want to be able to change in the future or you may want to have an issue finalized, without any possibility of change.
What about child related issues?
It is important to note that all issues regarding a child, such as support, custody, college education expenses, are reserved by the court and subject to modification in the future until the child is emancipated under Massachusetts law.
What if my case goes to trial?
In the event that a negotiated settlement cannot be reached, the case will be marked for trial. During the trial, the judge will listen to the evidence presented by both parties and any witnesses. At the conclusion of the evidence, the judge will write its own judgment concerning child custody, support, visitation, alimony, equitable division of assets and debt and all other matters in which the parties could not agree.
What does the judge take into consideration when making a judgment?
In making a judgment, the judge is legally required to look at specific factors that are set forth in our statutes. The judge will also look to previous cases in order to obtain guidance as to how best to interpret the statutes. Even with these guideposts, each case largely turns on its own facts and the judge’s perception of those facts.
Can I appeal a judge’s decision?
If either party is not satisfied with the trial judge’s decision, then either party may appeal the divorce judgment. However, bear in mind that it is very difficult to win an appeal in a divorce case, unless there is an unusual or unique issue regarding Massachusetts law and how it was applied to your case.
Why is it difficult to win an appeal?
This is because each judge has great leeway and discretion in deciding what would be a fair and reasonable result for a particular case. Since the facts of each case are different and unique, each judge’s perceptions and opinions regarding issues can be very different from another judge. Unless the court reviewing the trial judge’s decision finds that judge was arbitrary or capricious in the decision, it is unlikely to reverse that judge’s decision.
Can my attorney predict the outcome?
It is impossible to predict the exact result you will obtain. Your attorneys, who are familiar with the judge assigned to your case may be able to “guesstimate” the possible outcomes in order to help you decide whether it would be better for you to settle your case or go to trial.