Contested Divorce

Although joint petitions for divorce are desired by many spouses, getting divorced by joint petition is not always possible, practical, or prudent. Reasons include: one spouse not wanting a divorce; one spouse wanting a divorce for a different reason than the other; an inability to agree on separation terms, including financial terms; significant disputes regarding parenting issues; domestic violence; general discord between the spouses; disagreements regarding alimony and / or child support; and often, a spouse’s lack of knowledge and/or trust in the other’s financial representations.

Whenever one or both spouses determine a contested action is necessary, one of the spouses needs to file a complaint for divorce (with the filing fee and other requisite documents), and begin what is commonly called a contested proceeding. Contested proceedings take two basic approaches. The most common approach is to claim the parties have suffered an “irretrievable breakdown of marriage” and demand a divorce pursuant to M.G.L. c. 208, § 1B. Although not usually favored, a party may also seek a “fault based” divorce, which requires the party to prove the marriage is over based on the fault of the other one.

Aside from an irretrievable breakdown of the marriage, the basis for a fault based divorce can be “adultery, impotency, utter desertion continued for one year next prior to the filing of the complaint, gross and confirmed habits of intoxication caused by voluntary and excessive use of intoxicating liquor, opium, or other drugs, cruel and abusive treatment, or, if a spouse being of sufficient ability, grossly or wantonly and cruelly refuses or neglects to provide suitable support and maintenance for the other spouse.” M.G.L. c. 208, § 1. Additionally, a spouse may also request a divorce if the other spouse has been sentenced to life in prison or for a sentence of five or more years, pursuant to M.G.L. c. 208, § 2.

Regardless of what option is chosen (ie: irretrievable breakdown or a fault basis), the person who files the complaint is then called the plaintiff, and the other spouse is called the defendant. The complaint must be filed in the Probate and Family Court in the appropriate county, though sometimes multiple counties are appropriate depending on the locations where the divorcing spouses reside. Once filed, the complaint must be served upon the defendant, along with a summons which the court will provide. Service is typically done by sheriff or constable, though in many cases this can be avoided if the defendant is willing to sign a voluntary acceptance of service which the summons will provide for.

At the time the plaintiff files their complaint, a financial restraining order enters against them pursuant to Supplemental Probate and Family Court Rule 411. This financial restraining order likewise enters against the defendant at the time of service, which the summons will explicitly notify the defendant of. It is extremely important to follow the restraining order’s requirements. Failure to do so can result in being found in contempt of court, even if the other litigant is not financially harmed at the end of the day. Please also note that this is not a restraining order pertaining to abuse or domestic violence. Although the Probate and Family Courts have the authority to issue abuse prevention restraining orders, they must be requested and are not automatic.

After being served with a summons and complaint, the defendant then files an answer, if any. In practice, the defendant often files a counterclaim for divorce as well. Please note that the counterclaim can be for a different basis than the complaint. From that point on, there are three other important requirements that both sides most comply with, in addition to the automatic financial restraining order. They are:

  1. Per Supplemental Probate and Family Court Rule 401, the parties must periodically provide the other (and the court) with financial statements on proscribed forms;
  2. Per Supplemental Probate and Family Court Rule 410, the parties must provide each other with copies of specified documents primarily dealing with finances, pay stubs, and health insurance; and
  3. In in all actions in which there are minor children involved, the parties must attend a parent education program pursuant to Standing Order 4-08 of the Probate and Family Court. This requirement can sometimes be waived, and it also applies to uncontested joint petitions involving minor children.

Other than complying with the automatic requirements explained above, how the divorce action proceeds further depends on a myriad of factors, with the ultimate resolution being reached by judgment after trial if a separation agreement is not reached in the interim. During this time, either side may seek an allowance from the other for legal fees and expenses. Either side may also seek temporary orders from the court, upon motion, to control during the pendency of the case or until the orders are modified. Temporary orders can include, without limitation, orders pertaining to custody and visitation, alimony, child support, health insurance, and use of property. It is very important to have an experienced attorney assist you at all stages of a divorce action. This is especially true at any hearing on a motion for temporary orders, because the temporary orders can significantly affect how the case proceeds and is eventually resolved down the line.

While the case proceeds towards trial, either side may mark other kinds of motions to be heard by the court. These can include, without limitation, motions for the appointment of a guardian ad litem, discovery motions, and motions to change court dates. The court will also schedule hearings or conferences. Regardless of what court you are in, all courts will schedule the case for at least one pretrial conference, during which time the court may order the case to immediate trial in certain circumstances. As such, it is very important to always be prepared, and one of the best approaches to preparing is hiring an experienced divorce lawyer to assist you.

Also while the case is pending, both sides have the opportunity to request discovery from the other and from third parties. When third parties are often reluctant to produce requested information, a subpoena can issue to compel them to produce records at or in lieu of a deposition. A deposition is, basically, when a person is questioned under oath by an attorney (or unrepresented party) who scheduled the deposition, and any other attorney (or unrepresented party) who also attends. Whenever a trial seems likely, it is highly desirable to depose the opposing party and any other key witnesses. This locks them into a story so that you know what they will say at trial, or, at the minimum, can prove to the court that their story keeps changing and their testimony should be viewed with some skepticism on disputed facts.

Other discovery tools can include document requests, interrogatories (written questions to be answered in a writing signed under the pains and penalties of perjury), and requests for a party to make certain admissions. Typically, and for strategic reasons, our experienced lawyers prefer to serve interrogatories to be answered by, and before we depose the other party. However, what discovery tools are appropriate depends on both the facts of the case and the financial resources of the client. Not all cases warrant significant discovery expenses, and sometimes clients prefer to channel their financial resources elsewhere regardless of their resources. At the end of the day the client chooses what they do and do not want their experienced attorney to do in a particular case, after consultation.

At any point prior to trial, the parties can elect to mediate the case, or in many courts, to have a conciliator appointed. Mediation is a confidential and voluntary negotiation process, wherein a mediator helps the parties reach a voluntary agreement between themselves (with the assistance of the mediator and counsel). Conciliation is very similar, except the conciliator must be an attorney with significant divorce experience. Another key difference is that the conciliator reports back to the court once the conciliation concludes, and can even recommend the imposition (but not impose themselves) of sanctions if someone is conciliating in bad faith. Our skilled divorce attorneys highly encourage mediation and conciliation when the process is appropriate.

Finally, many divorces require the use of expert witnesses on certain issues. Failure to hire one can diminish or sometimes prevent a party from proving certain facts. Examples include proving the amount of money an under or unemployed spouse could be earning; and the tax consequences of certain asset divisions or allocation of support payments as alimony or child support. Other issues where experts are often beneficial are in valuating business and other assets, including real estate and collections. Our experienced lawyers can help you in identifying the need for an expert, and in selecting an actual expert witness.

If you are considering or have been served with a complaint for divorce, please contact an experienced divorce lawyer at LaFountain & Wollman, P.C., for a divorce consultation today.