10 Frequently Asked Divorce Questions

How do you start a divorce?
If the divorce is uncontested, the two parties file a joint petition for divorce with a separation agreement and an affidavit of irretrievable breakdown of marriage. The separation agreement must address all aspects of the divorce. If the divorce is contested, a divorce is started by filing a complaint for divorce and serving a summons and a copy of the complaint on your spouse. The summons will be provided by the court when you file the divorce. There is a filing fee for both types of divorce that can be waived if the filing party is indigent.

What are the grounds for divorce?
Although Massachusetts has seven fault grounds for divorce including adultery, cruel and abusive treatment, gross and confirmed habits of intoxication, gross or wanton and cruel refusal or neglect to provide suitable support, impotency, sentence or confinement to prison and utter desertion, almost all cases are brought on the grounds of irretrievable breakdown of the marriage relation.  Often many of the fault grounds are what precipitate the irretrievable breakdown of the marriage relationship.  As a practical matter, the grounds of irretrievable breakdown of the marriage relationship means that no one is required to remain married to if he/she are unhappy with the relationship.

Can you represent both me and my spouse?
No.  There is a conflict of interest between divorcing spouses (even those that maintain a cordial relationship).  A lawyer cannot represent both parties.  If you are asking this question, you may want to consider mediation.  If you and your spouse have already reached agreement on all aspects of your divorce, we recommend that one party retain an attorney to draft the separation agreement and other documents and that the other spouse retain an attorney simply to review the agreement.

What is joint custody?
Joint custody means shared custody. There are two concepts in custody: legal and physical. Legal custody is the power to make decisions for a child such as religion, medical, educational, and extra curricular matters. When there is joint legal custody, these decisions should be made by both parents together. Physical custody refers to the physical presence of the child. Joint physical custody means that the child’s time is equally divided between the two parents. The parent with the child will make the ordinary, day to day decisions without consulting the other parent. In divorces, joint legal custody is the usual result. Traditionally, one parent has had more parenting time with a child than the other parent and thus had physical custody.

How long do I have to live in Massachusetts prior to filing for divorce in Massachusetts?
If the cause of the divorce occurred outside of Massachusetts, the plaintiff must reside in Massachusetts for at least one year prior to the filing of the action. If the cause of the divorce occurred within Massachusetts, at least one of the parties must be a Massachusetts resident.

I was just served with a divorce complaint. Can I oppose the divorce?
Because Massachusetts allows a divorce on the grounds of irretrievable breakdown, a divorce will ultimately be granted even if you oppose it. All your spouse needs to prove to get a divorce is that he/she can’t live with you or doesn’t love you. This grounds for divorce is frequently called “no-fault divorce.” A fault grounds divorce can be contested but it will usually be changed to a no-fault divorce before the case is over.

My spouse wants a divorce and has given me papers to sign. What happens if I don’t sign the papers?
These papers probably include a separation agreement which will resolve all issues in the divorce. Signing these papers will mean that you agree with all terms. If you don’t sign the papers, the divorce will be considered contested. The issues may be resolved by a judge instead of by agreement of the spouses. Before signing these papers, you should consult an attorney to understand the terms of the proposed settlement.

How long will it take for my divorce to become final?
A divorce will be final ninety days after the Judge issues a divorce decree which is called a Judgment of Divorce Nisi. After this waiting period, the Judgment becomes final without further action (Judgment of Divorce Absolute). The decree nisi issues when the Judge grants the divorce. If the parties have file a joint petition for divorce with a separation agreement, the Judge must first approve the agreement and then there is an additional thirty day waiting period. In these cases, the divorce generally becomes final 120 days after the parties appear before the Judge. However, this may be delayed a few more days as the waiting periods start when the Judge signs the decree and not when the parties appear before the Judge.

Do I need to hire an attorney?
You don’t have to hire an attorney as you have the right to represent yourself. You could, however, be putting yourself at a serious disadvantage. Unless you and your spouse have no significant assets, children or unsettled issues, the divorce can become very complicated. An experienced family law attorney can be of great help during litigation.

Who pays my legal fees?
Usually, each party pays his or her own legal fees and expenses. If your financial circumstances are such that your spouse has sole control of the finances, and you have no access to funds with which you can pay legal fees, you have a right to file a motion with the Court requesting that your spouse release to you a portion of the funds with which you can pay your legal fees during the divorce proceeding. At the end of the divorce, attorney fees may be treated as a liability incurred during the marriage and allocated between the parties as part of the property division. In addition, the court can order attorney fees to be paid by a party when the court believes that a party has behaved improperly such as failing to obey a court order (contempt of court).

Divorce, Family Law

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