Family Law 101
RESIDENCY REQUIREMENTS AND WHERE TO FILE: If the grounds for divorce occurred in Massachusetts, 1 spouse must be a resident. If the grounds occurred outside of the state, the spouse filing must have been a resident for 1 year. The divorce should be filed for in the county in which the spouses last lived together. If neither spouse currently lives in that county, then the divorce may be filed for in a county where either spouse currently resides. [Massachusetts General Laws Annotated; Chapter 208, Sections 4, 5, and 6].
LEGAL GROUNDS FOR DIVORCE: No-Fault: Irretrievable breakdown of the marriage. [Massachusetts General Laws Annotated; Chapter 208, Sections 1, 1A].
General: (1) Impotence; (2) imprisonment for over 5 years; (3) adultery; (4) alcoholism and/or drug addiction; (5) desertion without support of spouse for 1 year before the filing for divorce; (6) cruel and inhuman treatment; and (7) nonsupport whereby a spouse is able to provide support but grossly, wantonly, or cruelly refuses or neglects to provide suitable maintenance for the complaining spouse. [Massachusetts General Laws Annotated; Chapter 208, Sections 1, 1A, 1B, and 2].
SIMPLIFIED OR SPECIAL DIVORCE PROCEDURES: An action for divorce on the grounds of irretrievable breakdown of the marriage may be instituted by filing: (1) a petition signed by both spouses; (2) a sworn affidavit that an irretrievable breakdown of the marriage exists; and (3) a notarized separation agreement signed by both spouses. A marital settlement agreement is an acceptable substitute for a separation agreement. No summons will be required. Such petitions are to be given a speedy hearing. Marital fault is not to be considered in any decision of the court on property division or maintenance. A Financial Statement must be filed in all divorce cases. There is an official Child Support Guidelines Worksheet contained in the Appendix of Forms. Finally, in every action for divorce, a Public Health Statistical Report must be filed by each spouse. [Massachusetts General Laws Annotated; Chapter 208, Sections 1A and 6B and Massachusetts Rules of Court].
MEDIATION OR COUNSELING REQUIREMENTS: In cases where “irreconcilable differences” are used as the grounds for divorce, the court may refer the spouses and children for marriage and family counseling. [Massachusetts General Laws Annotated; Chapter 208, Sections 1A and Massachusetts Rules of Court].
PROPERTY DISTRIBUTION: Massachusetts is an “equitable distribution” state. The court may divide all of the spouse’s property, including any gifts and inheritances, based on the following factors: (1) the contribution of each spouse to the acquisition, preservation, or appreciation in value of the property, including the contribution of each spouse as homemaker; (2) the length of the marriage; (3) the age and health of the spouses; (4) the occupation of the spouses; (5) the amount and sources of income of the spouses; (6) the vocational skills of the spouses; (7) the employability of the spouses; (8) the liabilities and needs of each spouse and the opportunity of each for further acquisition of capital assets and income; (9) the conduct of the parties during the marriage [if the grounds for divorce are fault-based]; and (10) any health insurance coverage. Fault is not a factor if the grounds for the divorce are irretrievable breakdown of the marriage filed in conjunction with a separation/settlement agreement. [Massachusetts General Laws Annotated; Chapter 208, Sections 1A and 34].
ALIMONY/MAINTENANCE/SPOUSAL SUPPORT: Either spouse may be ordered to pay maintenance to the other. The factors to be considered are: (1) the contribution of each spouse to the acquisition, preservation, or appreciation in value of any property, including the contribution of each spouse as homemaker; (2) the length of the marriage; (3) the age and health of the spouses; (4) the occupation of the spouses; (5) the amount and sources of income of the spouses; (6) the vocational skills of the spouses; (7) the employability of the spouses; (8) the liabilities and needs of each spouse and the opportunity of each for further acquisition of capital assets and income; (9) the conduct of the parties during the marriage [if the grounds for divorce are fault-based]; (10) any health insurance coverage; and (11) the present and future needs of any children of the marriage. Fault is not a factor if the grounds for the divorce are irretrievable breakdown of the marriage filed in conjunction with a separation/settlement agreement. Health insurance coverage may be ordered to be provided as part of the maintenance award. [Massachusetts General Laws Annotated; Chapter 208, Sections 1A and 34].
SPOUSE’S NAME: The wife may be restored to the use of her former or maiden name. [Massachusetts General Laws Annotated; Chapter 208, Section 23].
CHILD CUSTODY: Custody may be awarded to either or both parents or to a third party. If there is no marital misconduct, the rights of each parent to custody shall be deemed to be equal. The happiness and welfare of the child shall be the factors that the court considers. In making this consideration, the court shall consider: (1) whether or not the child’s present or past living conditions adversely affect his physical, mental, moral, or emotional health; (2) whether any family member abuses alcohol or other drugs; (3) whether either parent has deserted the child; (4) whether either parent has committed any acts of domestic violence; and (5) whether the parents have a history of being able and willing to cooperate in matters concerning the child. Joint custody may be awarded if both parents agree and unless the court finds that joint custody is not in the best interests of the child. If the issue of custody is contested and the parents desire some form of shared custody, a shared parenting plan must be submitted to the court. Provisions in a Marital Settlement Agreement relating to child custody will fulfill this requirement. [Massachusetts General Laws Annotated; Chapter 208, Sections 28 and 31].
CHILD SUPPORT: The court may order either parent to provide maintenance, support (including health insurance), and education for any minor child. There are official Child Support Guidelines. These guidelines are presumed to be correct unless there is a showing that the amount would be unjust or inappropriate under the particular circumstances in a case. Reasons for deviation from the Guidelines are:
- The parties agree and the Court approves their agreement;
- A child has special needs or aptitudes;
- A child has extraordinary medical or other expenses;
- Application of the guidelines, particularly in low income cases, leaves a party without the ability to self support;
- Payor is incarcerated, is likely to remain incarcerated for an additional 3 years and has insufficient financial resources to pay support;
- Application of the guidelines would result in a gross disparity in the standard of living between the two households such that one household is left with an unreasonably low percentage of the combined available income;
- A parent has extraordinary medical expenses;
- A parent has extraordinary travel or other expenses related to parenting;
- Application of the guidelines may adversely impact re-unification of a parent and child where the child has been temporarily removed from the household based upon allegations of neglect; or
- Absent deviation, application of the guidelines would lead to an order that is unjust, inappropriate or not in the best interests of the child, considering the Principles ot the guidelines.
Frequently Asked Questions
Q: How long must I have lived in Massachusetts prior to filing for divorce in an Massachusetts court?
A: If the cause of the divorce occurred outside of Massachusetts, the plaintiff must have resided 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.
Q: What are the terms used to identify the parties in a divorce proceeding?
A: The filing party is known as the Plaintiff or Petitioner and the other party to the action is referred to as the Defendant or Respondent. If a joint complaint is filed, both parties are referred to as Co-Petitioners.
Q: What is “venue,” and what is the proper venue for a divorce case?
A: “Venue” refers to which type of court and in what locality the case is filed. In Massachusetts, proper venue for the divorce action is the Probate Court. An action for divorce may be filed in the county of the parties’ last residence as husband and wife. If neither spouse still lives in the county of the last marital domicile, the divorce may be filed in the county where either party resides.
Q: What is the title of the document initiating the action for divorce? The order granting the divorce?
A: The title of the document initiating the divorce proceeding is the Complaint, or Joint Petition while the title of the order granting the divorce is referred to as the Judgment of Divorce.
Grounds for divorce
Q: What is meant by “grounds for divorce”?
A: A “ground” for divorce is a “reason” for divorce. A set of judicially recognized reasons for divorce exist in Massachusetts. You must use one or more of these reasons to justify your divorce.
Q: What are the recognized grounds for divorce in Massachusetts?
A: A divorce may be granted on any of the following grounds:
3. Desertion for at least one year;
4. Addiction to drugs/alcohol;
5. Cruel and abusive treatment;
6. Refusal to support spouse when able;
7. Confinement in penal institution for 5 or more years;
8. Irretrievable breakdown of the marriage.
Simplified divorce procedure
Q: Is a simplified divorce proceeding provided by Massachusetts law?
A: Yes. An action for divorce based upon the irretrievable breakdown of the marriage may be commenced by the parties filing a joint petition and a sworn affidavit alleging that the marriage has suffered an irretrievable breakdown along with a separation agreement. No summons or answer is required if this method is chosen. After the court has a hearing in which the separation agreement is examined to determine if proper provisions were made for alimony, property distribution and custody and support of any children of the marriage, the court will within thirty days of the hearing make a finding of whether the divorce should be granted.
Q: What does the term “spousal support” (or, “alimony”) mean?
A: “Spousal support” (sometimes called “alimony”) is money paid by one spouse to the other due to the payee spouse’s loss of the benefit of the payor spouse’s income due to the divorce.
Q: Is spousal support available while the divorce is pending in court, or only after the divorce has become final?
A: The court may order that one spouse support the other during the pendancy of the divorce action and/or after the divorce has become final. Support awarded pending the final decree of divorce is not to extend beyond the period of time necessary for the prosecution of the divorce action.
Q: What factors will the court consider when determining how much alimony to award to a party?
A: Either party to a divorce may be ordered to pay alimony to the other spouse. In determining the amount and nature of the alimony award, the court will consider several factors.
Q: On what basis does the court decide how marital property is divided?
A: The court may assign to either spouse all or part of the estate of the other spouse after consideration of the following factors:
1. The length of the marriage;
2. The conduct of the parties during the marriage;
3. The age, health, station, occupation, amount and
sources of income;
4. The vocational skills and employability of the parties;
5. The estate, liabilities and needs of each party;
6. The opportunity of each party for future acquisition of capital assets and income;
7. The present and future needs of any dependent children of the marriage;
8. The contribution of each party to the acquisition, preservation or appreciation in value of their respective estates.
9. The contribution of each of the parties as a homemaker to the family unit.
Child custody and visitation
Q: What is child custody and visitation?
A: “Child custody” refers to which parent will have legal custody of the child(ren), i.e. with whom the child(ren) will live. “Visitation” is the topic of the non-custodial parent’s ability to visit/spend time with the child(ren).
Q: If the parents cannot agree on child custody and visitation issues, on what basis will the court decide?
A: The court may award custody to either parent, regardless of sex, subject to the best interests of the child. In determining the child’s best interests, the court shall consider several factors.
Q: What is “child support”?
A: Child support is money paid by the non-custodial parent to the custodial parent in order to meet the needs of the child(ren).
Q: To what should the parties look for guidance regarding amount of child support to be paid? What standard will the court use if the parties cannot agree?
A: Massachusetts has enacted child support guidelines that are presumed to be the correct amount of child support due. The court may deviate from the guidelines if the application of the guidelines would be unjust or inappropriate under the circumstances.
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