What Is a Divorce?
A divorce is a legal process that officially ends a marriage. When spouses decide they no longer want to be married, they must go through this process to dissolve their marriage legally. In Massachusetts, the law requires that one or both spouses file for divorce in a court. The court then reviews the reasons for the divorce and any arrangements the couple has made for things like dividing their property, money, and responsibilities for any children.
Once the court approves these arrangements and the reasons for the divorce, it issues a divorce decree. This decree is the final step that formally ends the marriage, allowing both individuals to separate legally and marry someone else in the future if they choose.
Divorce vs. Separation
In many states, divorce and separation are two different legal statuses that couples can choose if they decide to live apart. A divorce completely ends the marriage. After a divorce, both people are free to marry someone else. The divorce process involves filing documents with the court and going through legal proceedings to finalize the end of the marriage.
A legal separation, on the other hand, does not end the marriage. Couples who choose separation remain legally married but live apart. In most states, this involves going to court and making decisions about issues like child custody, support, and property division. However, because they are still married, neither spouse can marry someone else during this time.
Importantly, Massachusetts has no legal process for separation like in some other states. This means that couples who wish to live apart while enjoying certain benefits of remaining legally married can do so without having to file for legal separation in court. Instead, they simply decide to separate and start living independently. Although they remain legally married, this arrangement allows more personal and financial independence.
If one spouse needs financial support from the other during the separation, they can file a separate support lawsuit. This lawsuit is a way to legally obtain financial support for themselves and their family during the separation period. The court considers the needs of the filing spouse and any children involved to determine how much support to order, if any.
Divorce vs. Annulment
An annulment is a court decision that declares a marriage null – as if it never happened. Obtaining an annulment is neither simpler nor quicker than getting a divorce. It requires substantial proof that the marriage is “void” or “voidable.”
A void marriage is legally invalid from the start. For instance, if one spouse was already married to someone else at the time of marriage and the other spouse was unaware, the marriage is void due to bigamy. Marriages between close relatives are also considered void under Massachusetts law. These include relationships by blood or marriage, such as parents, grandparents, siblings, children, or first cousins.
A voidable marriage, on the other hand, remains legally valid until the court annuls it. Cases that qualify for a voidable marriage include marriages where one spouse lacked the mental capacity to consent, such as because they were intoxicated or mentally incompetent at the time of marriage. Other grounds for a voidable marriage include the inability of one spouse to engage in sexual intercourse, marriages involving underage participants without proper consent, or marriages obtained through deception. For example, if one spouse married the other for immigration benefits without the other’s knowledge, there could be grounds for annulment.
If one spouse wants to remain married despite the other’s request for annulment on voidable grounds, they can ask the court to “affirm” the marriage, maintaining their marital status. This option respects the wishes of a spouse who believes in the validity of their marriage despite potential legal challenges. If a marriage doesn’t meet the criteria for annulment, the couple must pursue a divorce, ending a valid marriage through legal proceedings.
No-Fault vs. Fault Divorce
In Massachusetts, couples seeking a divorce can choose between no-fault and fault-based divorces. This choice significantly affects the legal process for ending the marriage.
A no-fault divorce involves the couple agreeing that their marriage has irretrievably broken down and no specific party is to blame. Massachusetts has two types of no-fault divorces: no-fault 1A and no-fault 1B.
A no-fault 1A divorce is an uncontested divorce in which both spouses agree on all major issues, such as alimony, property division, and custody arrangements. They jointly file a petition and a signed separation agreement, which typically makes the process smoother and quicker.
A no-fault 1B divorce is a contested no-fault divorce. It applies when only one spouse files for divorce, claiming that the marriage has irretrievably broken down, but the couple has not agreed on the terms of the separation. This type of divorce often requires more time to resolve, as the issues of asset division, support, and custody must go through the court for a final decision.
On the other hand, a fault-based divorce is one in which one spouse blames the other for the failure of the marriage due to specific reasons or grounds. However, proving fault can complicate the divorce process, often making it longer and more contentious. To file a fault-based divorce, the filing spouse must provide legal grounds for the divorce, such as adultery, abuse, or imprisonment.
What Are the Grounds for Divorce in Massachusetts?
In Massachusetts, fault-based divorce allows one spouse to file for divorce by blaming the other for the failure of their marriage based on specific legal grounds. These grounds include:
- Adultery: Adultery occurs when one spouse has sexual relations with someone other than their spouse. This ground for divorce often applies when one partner feels betrayed, and the trust in the marriage has been severely broken. Proving adultery can require substantial evidence, which might include witness statements or photographs.
- Desertion: Desertion is when one spouse leaves the marital home and lives apart without the other spouse’s agreement or any intention to return for at least one year. This ground addresses situations where one spouse abandons the other without a justifiable reason, disrupting the marital union.
- Gross and Confirmed Habits of Intoxication: Gross and confirmed habits of intoxication exist when one spouse persistently abuses alcohol or drugs. This behavior must be ongoing and severe enough to disrupt the marital life and welfare of the family, making the living situation intolerable for the other spouse.
- Cruel and Abusive Treatment: Cruel and abusive treatment involves physical or mental abuse that endangers the safety or health of one spouse, making it unsafe or improper for the couple to continue living together. This treatment could include physical violence or severe psychological abuse that harms the spouse’s well-being.
- Non-Support: Non-support is when one spouse fails to provide financially for the other despite being able to do so. This ground is applicable if the lack of support forces the other spouse into financial hardship.
- Impotency: Impotency involves the inability of one spouse to engage in sexual intercourse, which must exist at the time of the marriage and continue to be an issue. This condition can prevent the couple from fulfilling a fundamental aspect of marriage.
- A Prison Sentence of Five or More Years: This applies when one spouse is convicted of a crime and sentenced to five years or more in prison, disrupting the marital relationship’s continuity and stability.
How Do I Start Filing For Divorce?
Filing for divorce in Massachusetts involves several steps. Below is a straightforward guide to help you through the process.
Step 1: Verify Eligibility to File for Divorce
Before initiating the divorce process, confirm your eligibility to file in Massachusetts. You qualify if you have been a Massachusetts resident for at least one year or if your grounds for divorce occurred within the state while both spouses lived here as a couple. This residency requirement ensures that the Massachusetts courts have jurisdiction over your divorce.
Step 2: Choose the Type of Divorce
Next, you’ll need to select the type of divorce that best fits your circumstances:
- No-Fault 1A Divorce: This type is appropriate when both spouses agree that the marriage cannot continue and have mutually agreed on all key issues, such as custody, asset division, support, and parenting time.
- No-Fault 1B Divorce: This type is necessary when you want a no-fault divorce, but there is a disagreement on the terms or the fact that the marriage is irretrievably broken.
- Fault Divorce: This type applies if you are claiming that specific misconduct by your spouse led to the breakdown of the marriage. This requires proving fault.
Step 3: Prepare Your Paperwork
Next, you’ll need to gather and prepare all required legal documents. This includes obtaining a certified copy of your marriage certificate and financial statements from both spouses. Additional forms, like a separation agreement for a no-fault 1A divorce, will be necessary, depending on your divorce type.
Step 4: File Your Paperwork and Pay the Fees
Once you have completed the appropriate paperwork, you must file it with the correct Probate and Family Court. This is the court in the county where you or your spouse live or where you both lived together if one of you still resides there. You can submit your paperwork by mail or in person for all divorce types. If you file a no-fault 1A or 1B divorce, you can also submit your paperwork online through eFileMA.
You must also pay filing fees via bank check, money order, cash, or credit card. If you cannot afford these fees, you can apply for a fee waiver, which requires additional paperwork proving financial hardship.
Step 5: Serve the Papers to Your Spouse (1B and Fault Divorces)
For no-fault 1B and fault divorces, you must officially notify your spouse of the divorce proceedings by serving them with the divorce summons and complaint. You can complete this step by working with your local sheriff’s department or a professional process server to ensure the service meets legal requirements. You will need to provide proof of service to the court.
Step 6: Attend Mandatory Co-parenting Education Course (1B and Fault Divorces)
If you have minor children and cannot agree on custody or parenting time in a no-fault 1B or fault-based divorce, you and your spouse must attend a mandatory co-parenting class. This four-hour program, called “Two Families Now,” educates parents on managing the challenges of parenting from two separate households. A judge will only waive this requirement under special circumstances.
Step 7: Exchange Financial Statements & Draft a Separation Agreement (1B and Fault Divorces)
After you serve your spouse, both parties must disclose their financial situations through detailed statements. These documents are essential for discussing alimony, child support, and property division. If you haven’t done so already, you’ll also need to negotiate and draft a separation agreement that outlines how you will manage all aspects of the divorce.
Step 8: Attend a Pre-Trial Hearing (1B and Fault Divorces)
A pre-trial hearing might be necessary if unresolved issues remain after you attempt negotiation. The pre-trial hearing includes a discovery phase, where you and your spouse can obtain additional evidence from one another. Both spouses or their attorneys must prepare and submit pre-trial memoranda outlining their positions and the evidence they will present before the pre-trial hearing can occur.
Step 9: Attend the Divorce Hearing
The last step of the process is the divorce hearing, which allows the judge to review all agreements and evidence before finalizing the divorce.
For a no-fault 1A divorce, both spouses typically must be present at the divorce hearing unless the court grants a waiver. At the hearing, the judge will ensure that the agreement is fair and that the marriage breakdown is irretrievable before issuing a divorce decree. If so, the judge will accept the couple’s separation agreement. After a 120-day waiting period, a no-fault 1A divorce becomes final, and the ex-spouses are free to remarry.
For no-fault 1B and fault divorces, there is a minimum six-month waiting period before the hearing unless the court grants a waiver. A hearing for a no-fault 1B or fault-based divorce commonly involves more extensive legal arguments and can lead to a full trial if the parties cannot settle their disputes. After the judge makes their final decision, whether at the hearing or during a trial, the divorce becomes final following a 90-day waiting period.
What Legal Documents Are Necessary for My Divorce?
Filing for divorce in Massachusetts requires preparing and managing several important legal documents tailored to your specific circumstances. Certain documents are universally necessary, whether you are filing a no-fault 1A, no-fault 1B, or a fault-based divorce. Others depend on factors like whether you have children or unique financial or legal circumstances. Here’s a breakdown of the necessary paperwork and when each document is necessary.
Divorce Complaint Forms
The specific complaint form you fill out depends on the type of divorce:
- No-fault 1A divorces use a Joint Petition for Divorce form, which both spouses must sign
- No-fault 1B divorces require a Complaint for Divorce under section 1B signed by one spouse
- Fault divorces use the Complaint for Divorce Form, which must detail the specific faults that led to the dissolution of the marriage
Certified Copy of Your Marriage Certificate
Every type of divorce filing in Massachusetts requires a certified copy of your marriage certificate. This document, which you can get from the Registry of Vital Records or the city or town where you were married, proves the legality of your marriage.
Separation Agreement
A separation agreement is essential for all divorce types. However, if you file a no-fault 1A divorce, you must file your separation agreement along with your joint divorce petition. You typically create this document for no-fault 1B and fault-based divorces later in the process.
This written contract between you and your spouse outlines how you will resolve divorce-related issues such as child support, alimony, child custody, parenting time, and property division. Both parties must sign and notarize this agreement. Spouses can negotiate separation agreements independently or with the aid of lawyers or mediators. These documents can become binding either as standalone contracts or when judges incorporate them into final divorce judgments.
Affidavit of Irretrievable Breakdown
For no-fault 1A divorces, both spouses must prepare and sign an affidavit declaring that the marriage has irretrievably broken down. This confirms the couple’s mutual agreement on the dissolution of the marriage.
Financial Statements
In all types of divorce cases, each spouse must prepare a financial statement detailing their income, expenses, assets, and liabilities. This document is essential for determining issues like alimony and child support. In contested divorces, either spouse can request a current financial statement from the other party through a formal request to the court.
Military Affidavit
If either spouse is a military servicemember, they must file a Military Affidavit to confirm their status. This can significantly affect the legal proceedings, especially when it comes to deployment or stationing outside Massachusetts.
For Couples with Children Under 18
Additional forms are necessary when minor children are involved. These include:
- An Affidavit Disclosing Care or Custody Proceeding to ensure the court is aware of any legal proceedings that involve the custody of the children
- A completed Child Support Guidelines Worksheet calculating the appropriate amount of child support according to Massachusetts guidelines
Other Forms for Special Circumstances
Certain situations might require additional forms, such as:
- An Affidavit of Indigency requesting to waive court fees for those unable to afford them
- A Findings and Determinations for Child Support and Post-Secondary Education form if the couple believes the standard child support guidelines should not apply to them
- A Motion for Temporary Orders, accompanying affidavit, and Proposed Order form outlining the desired orders if immediate decisions on custody, support, or property are necessary while the divorce is pending
What Are Massachusetts’ Separation Requirements?
Unlike in some other states, there’s no required separation period before you can file for divorce in Massachusetts. This means Massachusetts does not require couples to live apart for a specific period before filing for divorce, whether it’s a no-fault or fault-based divorce. However, for no-fault 1B divorces and fault-based divorces, the court will only schedule a final hearing six months after the filing of a divorce complaint.
Massachusetts’ Waiting Period for Divorce
In Massachusetts, the waiting period for a divorce to become final depends on the type of divorce you file. For a no-fault 1A divorce, after a judge approves the separation agreement and confirms that the marriage cannot continue, they will issue a judgment nisi. This judgment does not finalize the divorce immediately. Instead, it initiates a waiting period of 30 days before it becomes active, allowing both parties time to reconsider or verify claims, such as the accuracy of property disclosures. Once the judgment nisi period begins, it lasts for 90 days. During these 90 days, neither spouse can remarry. If neither spouse takes action during this period, the divorce officially becomes final 120 days after the judge approves the divorce.
The process involves a longer initial phase for no-fault 1B and fault-based divorces. The court cannot hold a hearing sooner than six months from the filing date of the divorce complaint. After this hearing, if the judge resolves all issues and enters a judgment, the nisi period again lasts for 90 days. The divorce becomes final at the end of these 90 days, allowing time for any appeals or additional considerations. As with a no-fault 1A divorce, the spouses remain legally married during the nisi period and cannot remarry until the divorce is officially finalized.
How Much Does a Divorce Cost?
The cost of a divorce in Massachusetts can vary widely depending on the complexity of the case and whether it is uncontested or contested. Generally, the court filing fees are the first costs both parties will face. Filing fees for divorce cases typically include a $200 divorce filing fee and a $15 filing surcharge. For no-fault 1B and fault-based divorces, there is also a $5 divorce summons charge. If you cannot afford these filing fees, you can apply for a fee waiver by filling out an Affidavit of Indigency.
Besides the filing fees, there are also attorney’s fees. Attorney fees vary widely, with hourly rates typically ranging from $200 to $500. The costs are often lower for uncontested divorces where both parties agree on all terms, as less legal work is necessary. However, for contested divorces, the costs can be substantially higher, sometimes reaching thousands of dollars. Additionally, depending on the situation, there might be costs for mediators, financial advisors, and other professional services.
How Long Does a Divorce Take?
The duration of a divorce in Massachusetts varies based on the type of divorce and the complexity of the case.
The process can be relatively quick for a no-fault 1A divorce, where both spouses agree on all terms. There is a waiting period after filing the necessary paperwork and attending a court hearing. The divorce typically becomes final about 120 days after the judge approves it, assuming there are no changes or objections from either party during the judgment nisi period.
The process takes longer for a no-fault 1B divorce, which might involve disagreements on certain terms. Some couples spend weeks or months negotiating separation agreements in no-fault 1B divorce cases. Additionally, the court will not schedule a hearing for this type of divorce until at least six months from the filing date. After the hearing, once the judge settles all disputes, the divorce becomes final 90 days after the judgment nisi period begins.
A fault-based divorce can take even longer, especially if it involves contested elements that require a trial to resolve. These cases also require a six-month waiting period between the filing of the initial complaint and the scheduling of the hearing. Depending on the complexity of the case and the court’s schedule, fault-based divorce cases can extend over several months or even years.
What Are Some Common Mistakes in a Divorce Filing?
Filing for divorce is a detailed, multi-step process, and it’s easy to make mistakes if you’re not careful. These errors can cause delays, increase costs, or negatively impact the final settlement. Here are some common mistakes people make when filing for divorce:
- Filing Incorrect Forms: Each type of divorce requires specific forms. Using the wrong forms can stall your divorce process. For example, choosing the wrong complaint form or filling out the forms incorrectly leaves you at risk of having to refile, which can extend the timeline and cost you additional fees.
- Not Properly Serving Divorce Papers: If you fail to serve the papers to your spouse in a no-fault 1B or fault-based divorce, the court cannot proceed with your case. Improper service can delay your case or lead to its dismissal.
- Omitting Information on Financial Statements: Accurate financial disclosure is essential in divorce proceedings. Failing to fully disclose all assets, liabilities, income, and expenses can result in an unfair settlement. Moreover, you could face penalties if the court discovers you intentionally hid or misrepresented your financial situation.
- Neglecting to Consider Tax Implications: Many people overlook the tax implications of divorce, especially when dividing property or agreeing on alimony. For instance, transferring certain assets can trigger significant tax liabilities. Understanding these implications is crucial to making informed decisions and avoiding financial strain later on.
- Assuming the Process Will Be Quick and Easy: Many people underestimate the time, effort, and emotional strain of a divorce, especially if it becomes contentious. Assuming that the process will be straightforward can lead to frustration and poor decision-making. Being prepared for a potentially complex and drawn-out process is essential for managing expectations and making strategic decisions.
When Is It Time to Take Action on Your Divorce?
Deciding when to take action on your divorce is a significant and personal decision that depends on several factors. It might be time to act if you are certain that your marriage cannot be saved and believe that ending the marriage is your best option. Remember to think through the implications for your finances, living arrangements, and, if applicable, your children. It’s also a good idea to consult a lawyer for advice specific to your situation and the legal steps involved. This will allow you to approach the divorce process in a structured and thoughtful way, leading to clearer decisions and a smoother transition to the next phase of your life.
Contact a Massachusetts Divorce Lawyer Now
Are you ready to start your divorce process but unsure where to begin? LaFountain & Wollman P.C. is here to help. We’ve been providing trustworthy legal advice since 2010, empowering our clients to make informed decisions about their futures. We understand the challenges you’re facing and are here to offer the support and guidance you need. Contact us today for an initial consultation, and begin your divorce case with a legal team that cares.