Although divorce is often perceived as a costly, time-consuming process, it does not have to be. Massachusetts couples can take advantage of many state-sponsored online resources and free forms for divorce to help the process go more smoothly. To file for divorce in Massachusetts, at least one spouse must have lived in the state for a minimum of one year.
Grounds for Divorce
Massachusetts permits couples to choose either a fault-based or no-fault divorce. Because a no-fault divorce allows you to avoid assigning blame or raising any potentially embarrassing allegations, most people prefer this option.
No Fault Grounds
Under Massachusetts law, parties can file a no-fault case either jointly or separately simply by stating their marriage has suffered an "irretrievable breakdown." When parties file jointly, Massachusetts family law refers to their case as a 1A divorce, which is processed more quickly because the parties agree on all issues from the very beginning of the case.
Fault Based Grounds
Although it is not a popular option, spouses can also choose from among seven fault grounds, which include:
- Cruel treatment or abuse
- Desertion for a least one year
- Infidelity
- Inability to perform seuxally
- Excessive alcohol or drug use
- Refusal to provide proper support
- A spouse is serving a prison sentence for five years or more
How to File
To begin your case, you must file the appropriate forms for the type of divorce you have chosen, whether uncontested or contested. In an uncontested case, the parties agree on all outstanding issues up front, before the paperwork is filed. In a contested divorce, the couple must pursue their case through the legal system to settle their differences. Massachusetts offers a helpful self-help site where you can find forms and instructions.
Uncontested Divorce
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If both parties desire the divorce and agree on all the issues, they can file a Joint Petition for Divorce. Additionally, the parties must submit a Financial Statement, certified copy of the couple's marriage certificate, and an R408 form, which the court will use to register the Certificate of Divorce with the Massachusetts Department of Public Health Registry of Vital Records and Statistics. If there are minor children, they must also file an Affidavit Disclosing are or Custody.
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Additionally, the parties must submit all their agreements to the court for its approval. The Hampshire County Probate and Family Court provides free forms on its website that can be used by all Massachusetts couples. Parties with children can file the Separation Agreement that includes provisions for parenting arrangements. There is also a Separation Agreement for people without minor children.
Contested Divorce
The petitioning spouse must file a Complaint for Divorce. After the Complaint is filed, the court issues a Summons to the filing party, who must then "serve" it on the other person. This service requirement ensures that the defendant spouse is aware that a lawsuit is pending and that he or she has been named as a party. Massachusetts law permits parties to serve papers through sheriff, constable, personal delivery, or mail. Regardless of which service method you choose, however, the court must receive proof of service before the case can proceed. Once the recipient spouse has been served, he or she has 20 days to file an Answer.
Waiting Periods
Regardless of how you file, your divorce can't be complete until you've waited the requisite time:
- If you file a contested divorce, you must wait at least six months between the initial filing and the court hearing.
- After the final court hearing, there is an additional waiting period before your divorce is finalized. This final decree is known as a "decree nisi," which means "unless" in Latin. Massachusetts law requires the judge to wait 90 days before granting the final decree of divorce in contested cases.
- In uncontested divorces, this waiting period is 120 days between when you file and when the divorce is finalized.
Property Distribution
Massachusetts is an equitable distribution state. State law requires judges to consider the following factors when dividing property in a divorce:
- Duration of marriage
- The spouses' behavior during the marriage
- Both spouses' ages
- Both spouses' health
- The social station of each party
- The parties' occupations
- Income of both sides
- Each side's sources of income
- The parties' vocational skills
- Debts of both spouses
- The employability of each spouse
- The estate of each spouse
- The parties' needs
- Whether either party has an opportunity to acquire assets in the future
- Whether either party has an opportunity to acquire additional income in the future
- The current and future needs of the parties' children
Alimony
Massachusetts domestic relations law permits either spouse to petition the court for alimony, which is also referred to as spousal support. Although Massachusetts is a no fault state, the courts can consider the behavior of either spouse while awarding alimony, in addition to other factors.
Child Custody and Support
In any divorce that includes children, courts take great care to address the needs of the couple's children.
Child Custody
There are several custody arrangements available under Massachusetts law. When deciding which arrangement will best serve the child's interests, courts consider the following factors:
- The child's past living conditions and whether they negatively impact his or her physical, mental, moral, or emotional health
- The child's age
- The parents' ages
- The physical and emotional status of the parties
- The child's school performance
- Each parent's ability to promote the child's growth and development
- Each parent's ability to provide a stable environment
- The child's relationship with siblings and other household members
- Each parent's willingness to cooperate with the people important in the child's life
- The parents' behavior or excuses for any behavior that impacts the child
- The child's wishes
- The reasons why the parents are seeking custody
- How long a child has lived with a parent
- Each parent's occupation
- The financial and emotional support available to the child
- The child care arrangements of each parent
- The distance between the parents' homes
Child Support
Massachusetts requires both parents to contribute to the financial security of any minor children. Using guidelines set forth in the family law code, the court considers each parent's income, as well as other contributions to the child's economic well-being. The Massachusetts government publishes a free child support calculation worksheet on its website so parents can get an idea of how much they are likely to pay.
Preparing Your Case
A divorce is always a big decision. In many cases, deciding to end your marriage is an important step toward claiming a more promising future. By making this critical decision, you can move on to gathering information and preparing documents to file your case. Although Massachusetts provides a great deal of online resources for those who wish to proceed without an attorney, people with more complicated assets and custody disputes should seek the help of an experienced family law attorney.
