Ways to Divorce

There are different ways to divorce in Massachusetts. If you and your spouse are able to effectively communicate, you may choose to discuss your options, and come to an agreement on how to proceed. It only takes one spouse to file a complaint that engages a contested, litigated divorce. The other spouse has no choice but to follow. In order to engage in the more peaceful, controlled alternatives to divorce resolution, then both parties must agree to voluntarily participate fully and engage in the alternatives to litigation, such as mediation or collaborative law.

When does litigation take place?

Litigation is the court process for both spouses engaging in a contested divorce. Even if one of the spouses prefers mediation or some other more peaceful means of divorce resolution, it takes only one spouse to engage in litigation by filing a complaint for divorce, with forces the other spouse to engage in defensive posture.

Who becomes the plaintiff and the defendant?

The spouse who files the complaint for divorce is labeled the plaintiff and the other spouse is the defendant. After being served with a complaint for divorce, the defendant can also file a “counterclaim” for divorce, in which the defendant in the main divorce becomes the plaintiff in the counterclaim and the plaintiff becomes the defendant in the counterclaim.

What does the plaintiff and defendant titles mean?

In most cases, it does not matter whether a spouse is a plaintiff or defendant, other than the fact that the plaintiff goes first in presenting evidence at trial and the defendant presents evidence after the plaintiff. Unless there is some specific strategic reason to be a plaintiff or defendant, it usually does not matter which spouse is identified as the plaintiff or defendant.

What happens after a complaint for divorce is filed?

After a complaint for divorce is filed, a judge is assigned to the case and given the authority to resolve all divorce issues, such as custody, support, parenting plans, asset and debt division, maintenance and coverage of health, dental, ie, disability insurance and tax impact and ramifications for all financial matters.

Can you explain the process of litigation?

The process of “litigation” begins with the filing and service of the complaint for divorce. Once the defendant is served, there is an automatic restraining order that precludes both spouses from dissipating assets. This automatic restraining order has specific limitations and allowances.

What is the second stage of litigation?

The second stage of litigation moves to the “discovery” stage. Within forty five (45) days of the defendant being served the complaint and summons, the parties are supposed to exchange three years of tax returns, bank and investment accounts, any financial applications, last four paystubs, and information regarding health and dental insurance.

What does Supplemental Rule 410 production mean?

Supplemental Rule 410 production usually provides both parties enough information to analyze the finances of the case. If there are complex issues or concerns, then formal “discovery”, such as a request for production of documents, interrogatories and depositions can be served to opposing party/counsel to supplement the initial three years of documents. Relatives, friends and persons close to the parties of the divorce may be questioned through a deposition. Obtaining this information for trial preparation will be crucial to a fair division of assets and property during the final divorce decree.

What if we cannot agree on conduct during our divorce process?

Early in the litigation process, if the spouses cannot agree temporarily how they will conduct themselves during the pendency of the divorce, either the plaintiff or defendant may file a request (called a motion) with the court to have temporary orders in place, such as payment of support by spouse to the other for alimony or child support, maintenance of health and life insurance coverage, determining child custody and parenting schedules and who can remain in the former marital residence.

What are the terms of the temporary order?

The terms of the temporary order can be very important, as it often creates the new “status quo”, which can be difficult to change later on. During such hearings, both parties will have an opportunity to present a summary of their position on each issue presented, such as custody, parenting schedules, spousal and child support, maintenance and payment of insurances, access to the former marital house and automobiles. Both spouses are required to submit signed financial statements and if applicable, child support guidelines.

What if there are parenting and custody concerns?

If there are child custody or parenting concerns, it may appropriate to request the judge appoint a court investigator, known as a Guardian Ad Litem (“GAL”). Both parties can be ordered to share this cost equally and be ordered to participate in the investigation, which may also include psychiatric or drug/alcohol testing, depending on the allegations against one or both spouses.

How expensive can litigation get?

Litigation can be very expensive since contested issues, especially those that have complex finances or are emotionally charged, can cause many hours of legal preparation and appearances in court. Since divorce lawyers are paid by the hour, this time can become quite expensive. Added to this financial stress is the concern that, instead of you and your spouse cooperatively working together to create the terms of your divorce, the litigation process delegates that responsibility to your assigned judge, who is likely not as familiar with your family needs and finances as you are and has a schedule and work load that limits the amount of time that can be dedicated to your case.

What if we do not agree with the judge’s decision on the case?

Since the judge’s decision is based on what the information the judge is presented in court, a judge may make decisions to which you don’t agree. Appealing a judge’s decision, either during the divorce process or after your divorce was concluded with a trial judgment, the appeal process is generally limited to the trial judge abusing the significant discretion that each judge is afforded by law. Therefore unless the record proves that the judge abused his/her discretion in making the decision he/she did, the appeals court will likely not reverse that judge. Therefore it is imperative that you present your case in the best possible manner to create a better result.

How do I reach an agreement when I file for an uncontested divorce?

An Uncontested Divorce, or “1A” no-fault case in Massachusetts occurs when you and your spouse agree to all of the terms of divorce. You may reach this agreement on your own, or with the help of an attorney. Once this agreement is reached, the terms of your divorce must be memorialized in a separation agreement.

What does the separation agreement include?

A separation agreement is a written contract between you and your spouse, and identifies in detail how you are going to divide your property, child custody, child support, spousal support, visitation and any other issues that relate to your divorce.

It is often helpful to speak to an attorney about the law and how it applies to you, in order to ensure you are making the best choice for you and your family.

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What if we decide to try mediation?

Family Law or Divorce Mediation is a method by which the parties meet with a neutral, experienced professional to resolve issues in a calm setting, rather than engaging in expensive and often protracted, public litigation in Court.

How does mediation work?

Mediation is a choice that can only work if both parties commit to the process. This choice provides both parties with the ability to be creative in formulating solutions that may not otherwise be considered by a judge in the litigation process.

Who would conduct our mediation?

A trained, neutral mediator provides a forum and direction for the parties to reach a self-determined and reasonable agreement that will be presented to the judge for incorporation into a judgment of divorce, paternity, modification, custody etc. This process also should include each party separately engaging a consulting attorney to review the mediation notes and final agreement before either party executes the final agreement.

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How can we divorce through collaborative law?

The Collaborative Law process is truly a “team” effort in which the parties and professionals collaborate to create resolution in a family law matter, such as divorce and paternity matters.

How does this process work?

As with most alternative dispute resolution processes, this is a voluntary process that requires two willing parties to commit to a process until mutual resolution is reached.

How would be engage in the collaborative law process?

In order for a couple to engage the Collaborative Law process, both must be represented by an attorney who has received training and certification in the field of Collaborative Law. Additionally, the parties work with a neutral “coach”, who is trained to help facilitate discussions between the parties and work toward resolution of issues. Other neutral professionals may also become involved, such as a financial neutral, who assists in the financial decisions/tax implications and a parenting specialist, who may be brought in the collaborative process to assist the parties with child-related concerns.

How can this process be successful?

The key to success of this voluntary process is the desire of the parties to work towards resolution and the removal of the threat of litigation. Both parties and their attorneys sign a Participation Agreement, in which all agree that they shall not resort to litigation if an impasse occurs.

What does the Participation Agreement include?

This pledge includes the agreement that neither collaborative attorney will represent their client in any litigation that may subsequently commence as a result of one or both parties leaving the collaborative process.

Just how successful is collaborative law compared to other ways to divorce?

Most Collaborative processes are successful because the parties recognize the benefit of not resorting to costly, time consuming and emotionally draining litigation. This process is particularly helpful for parties who are willing to be creative in structuring solutions so that the divorce and separation have a minimal impact on their family. Collaborative Law also provides a forum for parties to hone their post-separation communication skills with each other so that they are more effective parents to their children long after their divorce/paternity matter has been finalized.

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