Divorce refers to the legal process in which a married couple’s marriage or legal union is dissolved by court order. Then, once a divorce has been finalized, each divorced individual will have sole control of the assets awarded to them in the divorce. Then each individual may choose to remarry. It is important to note that each state has its requirements and laws regarding divorce. Further, the actual process of filing for divorce will differ by state.
In general, all states require that the spouse filing for the divorce must be both a resident and domicile of the state in which they are filing. The time required for establishing residency will differ between states, but the time is generally a minimum of six months. The state of Massachusetts requires that a person must have resided in the state for at least 1 year before initiating divorce proceedings.
What Are the Different Types of Divorce?
Another factor involved in a divorce proceeding is the type of divorce that the petitioner chooses to file under. In general, there are two different types of divorce a person may choose to file:
- No-Fault Divorce: A no-fault divorce does not require the filing spouse to prove any wrongdoing on behalf of either spouse in order to file and obtain a divorce.
- No-fault divorces are available in the state of Massachusetts.
- Many states require that the couple declare they can no longer get along, which is most commonly called “irreconcilable differences.”
- In the state of Massachusetts, a person filing a no-fault divorce may cite that the marriage is “irretrievably broken and can’t continue;”
- At-Fault Divorce: An at-fault divorce is a divorce where a spouse may state that the other party is at fault for breaching the marital contract. As far as what exactly constitutes fault will vary from state to state, but the most commonly cited reasons for an at-fault divorce include:
- Cruelty, i.e., the intentional infliction of unnecessary physical or emotional pain;
- Adultery, i.e., cheating;
- Desertion for some time;
- Confinement in prison for a set amount of time; or
- The physical inability to consummate the marriage or impotence.
Is There a Difference Between a Divorce and Separation in Massachusetts?
In short, yes. In Massachusetts, a couple can file for a no-fault or fault-based divorce. However, Massachusetts does not recognize legal separations. Once again, a divorce is a legal marriage ending by court order. In contrast, a legal separation is a legal agreement available in some states that ends certain rights and responsibilities of a marriage, but the couples remain married.
In Massachusetts, a couple may choose to live separately but remain married. However, their rights and responsibilities will not be impacted. A couple may also choose to execute a separation agreement wherein they agree to certain separation issues, including child support, parenting time, alimony, child custody, and dividing shared property.
However, a final divorce agreement will take to recognize the separation agreement officially. If a couple in Massachusetts can agree to all the issues discussed in a divorce, they should choose to file a no-fault divorce.
What Paperwork Is Needed to File for Divorce in Massachusetts?
Once again, for a person to file for divorce in Massachusetts, they must:
- Be a resident in Massachusetts for at least one year before they file;
- Be a resident in the county in which they are seeking to initiate the divorce proceedings; and
- Attest that their marriage is irretrievably broken and cannot continue, or assert facts that prove a fault-based marriage, including:
- Adultery;
- Desertion;
- Gross and confirmed habits of intoxication;
- Cruel and abusive treatment;
- Non-support;
- Impotency; or
- A prison sentence of 5 or more years.
Once an individual meets the above requirements for filing the divorce, they must file a petition for divorce in the family law court in the county where they or their spouse lives, along with a certified copy of their marriage certificate.
Next, the filing spouse must notify their spouse of the complaint for divorce, along with serving them the complaint. Then the spouse that is served will have 20 days in which to respond to the civil summons. If the spouse served with the paperwork makes no response, then the spouse initiating the divorce proceedings can seek a default judgment.
How Is Community and Separate Property Defined in Massachusetts?
It is important to note that Massachusetts is a separate property state. This means that for divorce property in Massachusetts, the court will distribute property by equitable distribution. Thus, instead of courts trying to split property 50/50 as they would in a community property state, they will use certain factors to decide what is fair to give each spouse.
Common examples of equitable distribution factors that a court may use when dividing marital assets include:
- What each spouse contributed to the overall marital property;
- The value of the property that was set apart for each spouse;
- Any agreements by the two parties regarding how they wish for the property to be divided;
- The length of the marriage, whether or not one spouse left work to take care of the home and children; and
- The financial circumstances of each spouse when the court divides the marital property.
The court must also decide whether or not the property of the spouses will be considered marital property or separate property at the time of the divorce. Marital property is any property that the couple acquired during the marriage, including the income of both spouses. Separate property, on the other hand, is any property that either party owned before the marriage or any property that either party received during the marriage as either a gift, inheritance or from a will.
What If There Are Children Involved in the Divorce Case?
During a divorce or separation case in Massachusetts involving children, a family law judge will determine both child custody and child support. Child custody and support orders may either be temporary or permanent. Once again, a final decree of divorce, also known as a final judgment, involving children will contain a final child support and child custody order.
A Massachusetts family law court will always decide child custody based on the best interest of the minor child or children involved in the case. The family law court may choose to either order full custody or shared custody between the parents. A court will also typically look at any separation agreement offered to the court by both parents. If there is no agreement, a judge will determine which parent will be ordered to pay child support based on whether one or both parents have custody of the child.
If the court orders split custody, then no child support may be ordered in some cases. However, in some cases, a child support award may still be ordered for split custody in a divorce if the income-earning capacity of the parents is vastly different. In the case of an uneven custody order, the state child support guidelines will be used to help establish the amount of the support payments based on the following:
- The child’s medical or dental needs;
- The child’s educational, job training, or special needs;
- The child’s independent financial resources;
- The income of each of the parents; or
- Any agreements of child support payments made between the parents in a written or mediated agreement.
Do I Need a Lawyer for Help With Divorce in Massachusetts?
If you or your spouse live in Massachusetts and are considering filing for divorce, it is in your best interests to consult with an experienced Massachusetts divorce lawyer.
An experienced Massachusetts divorce attorney will best help you understand your state’s laws governing divorce, child custody, child support, and alimony. Finally, an experienced family law attorney can help you initiate the divorce process and represent you at any in-person court hearing, as needed.
