Divorce & Family Law

A divorce proceeding begins with the filing of a Complaint For Divorce in the Probate and Family Court of the appropriate county.  The Complaint For Divorce identifies the parties and any dependent children, sets forth the grounds for the divorce, and also sets forth the relief that is being requested from the court.  Today, nearly all divorce complaints are on the grounds of an irretrievable breakdown of the marriage (so-called “no-fault”), although a divorce can be brought on fault grounds as well, such as cruel and abusive treatment, adultery, or desertion.  It should be noted that bringing a divorce complaint on fault grounds does not give the filing party an advantage when it comes to child related matters, property division or alimony, as the court considers the same factors in deciding these matters whether the divorce is brought on fault or no fault grounds.  In fact, even where there is a strong basis for a fault grounds divorce, there are a number of reasons why it may be better to seek the divorce on the basis of an irretrievable breakdown of the marriage.

In every divorce case, contested or uncontested, each party needs to file a Financial Statement with the court, which sets forth under penalties of perjury the party’s income, expenses, assets and liabilities. The Financial Statement needs to be on the court’s own form, of which there are two, a short form for persons whose income is less than $75,000 annually, and a long form for persons whose income equals or exceeds $75,000 annually. Financial Statements are often updated several times in the course of divorce proceedings, as at each court appearance a current Financial Statement is required.

Child support is neither taxable to the recipient nor deductible by the payer, whereas alimony is generally taxable to the recipient and deductible by the payer.

If at the outset the parties have been able to resolve all issues between them, they can file a joint petition for divorce on the grounds of an irretrievable breakdown of the marriage, rather than a complaint for divorce. In a joint petition for divorce there is no plaintiff or defendant, there are simply two petitioners. The parties’ agreement on all issues is embodied in a written document generally referred to as a separation agreement. The separation agreement sets forth the parties’ resolution of all matters that need to be addressed: child custody, parenting time, child support, alimony, health insurance, life insurance, division of marital property, allocation of debt, etc. At the court hearing on a joint petition for divorce, if the judge finds the separation agreement to be fair and reasonable, the judge will grant the divorce based upon the irretrievable breakdown of the marriage and will order the parties to be bound by the terms of their Agreement. Upon the filing of a joint petition for divorce, together with all of the required documents (separation agreement, financial statements, certified marriage certificate, affidavit of irretrievable breakdown, care or custody affidavit, parenting class certificates, support guidelines worksheet, certificate of divorce absolute and request for assignment), the case will generally be heard within four to eight weeks, depending on the county.

If the parties have not resolved all issues and are proceeding on a complaint for divorce, cases often take a year or so to resolve, and if not able to be resolved and require a trial, it may take up to two years, or more. During the pendency of a contested case, the court may enter temporary orders, which address such matters as custody, support, alimony, health insurance and other matters that need to be addressed on an interim basis.

In general, child support in accord with the child support guidelines is paid until a child attains age 18.  Thereafter the court may make appropriate orders of maintenance, support and education of any child who has attained age 18 but who has not attained age 21 and who is domiciled in the home of a parent, and remains principally dependent on the parent for maintenance. The court can also make appropriate orders of maintenance, support and education for any child who has attained age 21 but who has not attained age 23, if the child remains dependent due to enrollment in an educational program, excluding educational costs beyond an undergraduate degree.

Massachusetts enacted an Alimony Reform Act, which became effective March 1, 2012. In very broad terms, the amount of alimony to be paid to an economically dependent recipient should generally not exceed the recipient’s need or 30% to 35% of the difference between the parties’ gross incomes. The Alimony Reform Act sets forth numerous factors that determine the type, amount and duration of alimony, as well as several deviation factors, which can result in a different amount or duration of alimony.

Massachusetts has child support guidelines that determine the amount of child support on combined gross incomes of up to $250,000. The court is required to determine child support using the guidelines, and it may deviate from the guidelines only if the court finds that the guidelines amount would be unjust or inappropriate and makes written findings setting forth the specific facts of the case, which justify departure from the guidelines. In all cases where an order for child support is requested, a child support guideline worksheet must be completed and filed with the court. Where the combined annual gross income of the parties exceeds $250,000, the award of support at the $250,000 is the minimum presumptive order and additional amounts of child support may be awarded in the court’s discretion.

There are four types of alimony under the Alimony Reform Act: General Term Alimony, Rehabilitative Alimony, Reimbursement Alimony and Transitional Alimony. General Term Alimony is for a duration based on the length of the marriage, provided that any General Term Alimony order will generally terminate, at the latest, upon the payor attaining the full Social Security retirement age. Other term limits apply for the various forms of alimony, in addition to several deviation factors, there are other limits on the duration of alimony such as remarriage or death of the recipient, death of the payor, and cohabitation of the recipient spouse.

In many cases the person who was the spouse of a member of a group health insurance plan remains eligible for benefits under the plan, without additional premium and as if the divorce judgment had not been entered, until the remarriage of either the member or the spouse. There are other health insurance plans, however, under which eligibility ends upon the divorce judgment entering. Ultimately, however, it is the court that determines post-divorce health insurance matters, including the allocation of the cost or additional cost of health insurance coverage following a divorce.

Yes, such assets are very often the largest asset in a divorce and are subject to division in the divorce.  Most retirement accounts are easily valued and readily subject to division and distribution. A defined benefit plan, however, such as a pension plan, may require an actuary to determine the present value of a future benefit under the plan, and the division of pension plan benefits is often by means of a formula which gives consideration to those plan benefits that accrued prior to the marriage, during the marriage, and that may or will accrue after the marriage has ended. Retirement accounts and pensions are generally divided by mean of a qualified domestic relations order, which allows a retirement account or portion of an account, to be transferred from one spouse to another without being taxed or subjected to an early withdrawal penalty upon the transfer, and a QDRO also allows a retirement account or a pension to be divided in such a manner that each party is taxed only on the retirement or pension benefits he or she actually receives.

There is a statute in Massachusetts, General Laws Chapter 208, §34, which sets forth the factors the court “shall consider” and “may also consider” in dividing the marital estate. Included in these factors are the length of the marriage, the conduct of the parties during the marriage, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties, the opportunity of each for future acquisition of capital assets and income, the present and future needs of the dependent children of the marriage, the contribution of each of the parties in the acquisition, preservation or appreciation in the value of their respective estates, and the contribution of each of the parties as a homemaker to the family unit. After hearing evidence on each of these factors and giving such weight to each of these factors as the court deems appropriate, the court is to fairly and equitably, and not necessarily equally, allocate the marital estate based on these factors. Notably, in Massachusetts, neither the premarital property nor inherited property is outside of the marital estate and exempt from allocation, although the courts do tend to give consideration, often substantial consideration, to whether a particular property is premarital or inherited property.

No, there is either a 120 day or a 90 day period before the judgment becomes absolute (final). When the court hears a Joint Petition For Divorce, 30 days after the date of the hearing a Judgment Of Divorce Nisi issues. This Judgment Of Divorce Nisi becomes an absolute judgment of divorce 90 days thereafter, such that the divorce is not final until at least 120 days have passed after the divorce hearing. When a Complaint For Divorce is heard, as opposed to a Joint Petition For Divorce, the Judgment Of Divorce Nisi generally enters on the date of the hearing, and it becomes final 90 days thereafter. The parties remain married to one another during the Nisi period, and the marital relationship does not terminate until the absolute judgment enters.

Conciliation is a process in which a neutral assists the parties to settle a case by clarifying the issues and assessing the strengths and weaknesses of each side of the case, and, if the case is not settled, explores the steps, which remain to prepare the case for trial.

Mediation is a voluntary, confidential process in which a neutral is invited or accepted by disputing parties to assist them in identifying and discussing issues of mutual concern, exploring various solutions and then developing a settlement mutually acceptable to the disputing parties.

The parties get to decide: The responsibility and authority for coming to an agreement remain with the people who have the conflict. The dispute is viewed as a problem to be solved. The mediator doesn’t make the decisions, and the parties don’t need to “take their chances” in the courtroom. Many individuals prefer making their own choices when there are complex tradeoffs, rather than giving that power to a judge. The parties are empowered to make decisions that are in their best interests.

Participants in mediation report higher satisfaction rates than people who go to court. Because of their active involvement, they have a higher commitment to upholding the settlement than people who have a judge decide for them. According to the American Bar Association, mediations end in agreement 70 to 80% of the time and have high rates of compliance.

Mediation can be a less intimidating process than going to court. Since there are no strict rules of procedure, this flexibility allows the people involved to find the best path to agreement. Mediation can deal with multiple parties and a variety of issues at one time. In addition, years may pass before a case comes to trial, while a mediated agreement may be obtained in a couple of hours or in sessions over a few weeks.

Further, the mediator will keep all the information discussed in the family mediation sessions confidential whereas tried cases generally take place in open court.

Divorce and family mediators promote and facilitate discussions that allow the parties to exchange differing views, ask questions, discuss difficult topics, and find solutions. Unlike litigation, it involves face-to-face meetings between the parties. Because the mediator is trained in assisting productive communication, the discussions often lead to resolution without the need for court decision-making. Mediation is done in a series of meetings, usually about two hours in length during which the mediator collects background information about the parties and the dispute. The parties are guided in what information and documents they need to provide so informed decisions can be made and so they can work through the issues with the assistance of the mediator. The mediator drafts an agreement suitable for presentation to a court or to act as a contract between the parties.

When parties resolve their disputes by litigation, their contacts are generally indirect – through attorneys and the rules of the court system. In addition, litigation is adversarial by nature. Because of this, litigation is often an inefficient way to resolve disputes. With court appearances, including motions, pretrial conferences, and possibly a full trial, the litigation process can be very expensive. Litigation almost invariably causes hard feelings to develop and solidify, deeply affecting not just the parties, but also the children, and other parties, such as in-laws.

Mediation is a more direct process, where the participants are in control of their own destiny. A series of face-to-face meetings led by the mediator can produce agreements that allow many parties to achieve an amicable divorce without a lawyer. Because the parties will not be pushed into win/lose debate or bargaining, solutions can be more creative, and fulfill more of each participant’s needs and desires.

Most mediators have an hourly charge for their services. Time is charged for mediation sessions, and also the work that is done between sessions, such as writing agreements or memorandums of understanding. The complexity of the case and the personality and history of the participants will cause a mediation to take more or less hours. Divorce mediations are typically completed in three to six two-hour mediation sessions, plus additional mediator work outside the sessions.

Yes. Your family mediator will keep all the information discussed in the family mediation sessions confidential. In litigation, everything becomes part of the public record; even personal matters that the parties would wish to keep private. This is one of the big differences between mediation and litigation. Mediation is considered settlement negotiations.

Most mediations end successfully, without litigation. However, in the rare event that the mediation ends and litigation takes place, a party cannot force a mediator to reveal his or her file or testify in the divorce case, if the mediator meets certain qualifications established by the Massachusetts statute.

Mediation is a completely voluntary process. Any agreements made are not binding, unless the parties wish to make them so. Any party can leave the mediation if he or she feels it is not working for that party. If the parties enter into a written agreement that has been developed during the mediation, that written agreement is likely to be a binding contract. In divorce mediation, often the parties enter into a mediated divorce agreement, which, if approved by the court, becomes the legally binding agreement relating to their divorce.

If the mediation is successful and results in a written agreement, the agreement can be submitted to the court for approval and for the court to enter an order. In a divorce in Massachusetts, the parties will need to attend an uncontested divorce hearing in which the agreement is presented, and the judge must make a finding that it is fair and reasonable under the circumstances in order to approve it.