Boston Divorce Lawyers

There are multiple grounds for divorce in the Commonwealth of Massachusetts, which are identified in M.G.L.A. c. 208.  Specifically, the Code identifies four grounds for which a married person can obtain a court-ordered divorce from his or her spouse.

Under Section 1, the traditional fault grounds for divorce are represented and include adultery (cheating by having sexual relations with someone other than the spouse), impotency (inability to consummate the marriage), utter desertion continuing for at least one year prior to the filing of the divorce petition, gross and confirmed (i.e. provable) habits of intoxication caused by the voluntary excessive use of liquor or drugs, cruel and abusive treatment, and gross, wanton and cruel refusal or neglect to provide suitable support and maintenance of the other spouse (if the person neglecting the other has the financial means to support).

Also under Section 1, the Code allows for no-fault divorce on the grounds that the marriage has become irretrievably broken.  In these cases, the parties must file a petition jointly and file a separation agreement with their complaint (Section 1A).  Alternatively, if the parties do not agree that the marriage is irretrievably broken and/or do not have a complete separation agreement, Section 1B allows one party to file a complaint seeking divorce; however, the party must wait six months before a hearing will be set on the issue of whether the marriage should be terminated.  During this six month waiting period, the court may enter temporary orders regarding child custody, child support, and spousal support.

Finally, the Code allows for divorce on the grounds that a spouse has been sentenced to be imprisoned for a period of five years or longer.

For more information about the grounds for divorce, click here.

Responding to a divorce case should be done carefully.  If the answer to the divorce action is not drafted properly, the responding party may not be able to assert a defense to the complaint in the latter stages of the case.

Many defendants in divorce cases choose to file a “counterclaim” to the divorce action, in which the defendant turns into the “plaintiff-in-counterclaim” and the plaintiff turns into the “defendant-in-counterclaim”.  A counterclaim is and should be filed in most cases or else the defendant’s right to seek affirmative relief may be blocked, meaning that the defendant may not have the right to request that the family court judge make certain orders and judgments.  In practice, most family court judges will consider all requests by a defendant even if a counterclaim is not filed; however technically the plaintiff can request that the court disallow such requests.

For an in-depth article about affirmative defenses to divorce, click here.

We have created a very detailed guide to how much it costs to divorce in Massachusetts.  Please click here for our detailed guide to the cost of divorce. And this guide is beneficial for anyone going through a dissolution of marriage throughout Massachusetts, like in Boston, Hingham or even New Bedford. 

Whether a divorce case takes a matter of days, weeks, months or years depends on a variety of important factors.  The first consideration is whether a case is uncontested or contested.  If the case is filed under Section 1A, it is an “uncontested” case and both parties sign a joint petition along with a separation agreement to open up the case.  This is by far the quickest route to resolve the entire case and receive a divorce judgment.  Once the uncontested divorce paperwork is filed, the court will set a hearing date.  On the hearing date, the judge will ask questions of the parties and then approve the parties’ agreement.  A judgment will be entered 30 days thereafter, and the divorce will be “absolute” (final) 90 days after that.

If a case is contested, the resolution of the case will depend on a number of factors including how cooperative the parties are, whether the parties have been open and honest about their finances, how cooperative the attorneys are working together, and so forth.

In most cases, the average time to conclude an entire contested case is approximately 10 to 12 months.  The reason is that usually parties disagree at first and then as a case progresses they will work on resolving their case together.

Unfortunately, if no agreements are reached a divorce case can and will take well over a year to complete.  The Massachusetts Probate and Family Courts are extremely backed up, and receiving a quick trial date is difficult, if not impossible.  The first hearing on the divorce is usually scheduled well over six months out, and if all goes smoothly the court will set trial on that date.  The trial date is almost always more than 6 months from the first hearing date.

Yes.  First, determine whether the delay is due to the court or due to your spouse (or their attorney).  If the delay is being caused by the court, try these options:

• Reach a settlement:  There is no quicker way to resolve a case, and the courts are happy to accept agreements to finish cases.
• File a motion:  If the court is slow to set hearings (i.e. case management hearing or pre-trial conference hearing), file a motion.  This will set a court date and at that hearing the court will set a case management hearing or pre-trial conference.

If the delay is caused by your Spouse, try these options:

• Conduct discovery: This will force your spouse to expend attorney fees to respond, and you will get the information you need.
• Schedule mediation:  Some counties offer mediation services through a conciliation program, or you can hire a neutral, private mediator.
• File a motion:  This will force your spouse to engage in the proceeding.
• File a motion under Rule 16, which allows the court to enter certain orders to expedite a case.
• Communicate:  Often times the largest barrier to resolution of a divorce case is lack of communication.  Having the courage to communicate directly with your spouse about resolving the case is a wonderful step to getting your case resolved.  It may uncomfortable, but it often works.  However, in some cases the opposing party is simply unwilling to discuss resolution with their estranged spouse.

Click here for a guide to speeding up divorce cases in Massachusetts.

Massachusetts is an “Equitable Division” state, which means that the court divides assets and debts between spouse “equitably” or “fairly”.  The general rule that all family court judges will apply initially is that assets and debts acquired during marriage are shared equally between spouses.  Then, judges will consider all the factors under MGL c. 208, Section 34 to determine exactly how the property should be divided.  The judges are not required to split everything exactly down the middle, and in fact, they rarely do.

The issue of alimony is extremely closely tied with the issue of property division and in fact, the same statute (Section 34) describes factors for both property division and alimony.  Recent case law is moving the courts to divide property more favorably to the supported spouse and somewhat reducing the amount of alimony that would be paid.  To apply a very simple example:

Suppose John and Jane were married for 7 years and acquired $100,000 in cash over the course of the marriage and no other assets.  Generally, the court will start with the assumption that the $100,000 will be divided $50,000 to John and $50,000 to Jane.  However, suppose John’s income is $150,000 per year and Jane’s income is $50,000 per year, and the parties have one child for which John will be paying some child support.   In this circumstance, because alimony will not be ordered (due to the order for child support) the court may very likely divide the cash 60/40 in favor of Jane or perhaps even 70/30.

Some significant factors that the court will consider when dividing property include:

• The contribution of each party toward acquiring assets during marriage
• The “separate” property of a spouse (property brought into marriage or acquired by inheritance)
• Conduct of each of the parties during marriage
• The age and health of the parties
• Employment and employability of each party
• Whether a party was the primary parent to rear a child during marriage
• Needs of each party

For more information about how a party’s conduct during marriage may effect property division, click here.  When high-asset cases are involved, conduct during marriage is extremely important as well – click here for more information about high-asset property division and how conduct plays a role.

There are two types of alimony, temporary and permanent.  Temporary alimony will be considered by the court if one party files a motion for temporary orders seeking alimony while the case is pending.  The court will look at each party’s needs for money as well as the payer’s ability to pay.  There is a “guideline” computer calculation that the family court judge is allowed to use, although they are not required to use this calculation.  Generally, the court will look at the gross income of each party as a starting point for determine whether, and how much, alimony should be ordered on a temporary basis.  After the court considers the income, any number of other considerations could come into play, for example:

• Whether one party is paying health insurance for the other party or children
• Whether certain “joint” expenses like mortgages or taxes are being paid by one party
• How expenses relating to children are being paid

Permanent alimony is ordered at the end of a case, either by an agreement between the parties or after a judge enters a judgment for alimony.  The factors that will be considered when ordering permanent alimony are the same as the factors for dividing property and some of those examples are provided above.  Fortunately, there is some clarity for permanent alimony with the amendments to the law in 2012, in that time limits for payment of alimony are defined by a formula depending on the length of marriage.  For more information about the time limits for alimony, click here.

Yes, unless the Court waives the requirement.  All parties with children that wish to divorce must complete a parenting course absent a compelling reason why a parent should not have to participate.  If you are seeking a waiver of the requirement to complete a parenting course, you must file a motion to request such an order.   The required parenting course is not difficult nor exceptionally time consuming.  A list of parenting courses offered by County can be found here.  For more information about parenting courses, click here.

When a divorce case is filed by the plaintiff, there is a document that is produced by the Court Clerk that is called a “Summons“.  The summons is a document that requires a defendant to participate in a proceeding, and the summons accompanies the complaint when given to the defendant.  The summons contains several very important prohibitions that apply to the plaintiff when the case is filed and apply to the defendant once they are “served” with the papers.  The restraining orders for divorce that are automatic include:

• Neither party can remove a child from the Commonwealth of Massachusetts without written permission or a court order.
• Neither party can change beneficiaries on health insurance, life insurance or other policies.
• Neither party can create an estate plan.

For more information about automatic restraining orders in Boston divorce cases, click here.

Discovery means the gathering of information through legally permissible ways during a civil court action, which may include sending a demand for inspection of documents and things, taking depositions, sending form and special interrogatories, physical or mental examinations, sending request for admissions, among other procedures.  Discovery in divorce cases is governed by Mass.R.Dom.Rel.P. 26-37 and follow similarly to the federal rules of evidence that most states have adopted.    The courts are available to step in to ensure that discovery is responded to by the receiving party.  Sometimes, sanctions are warranted when a party abuses the discovery process.

For more about discovery in Massachusetts divorce cases, visit this GUIDE.

Yes.  The law allows the court to order child custody orders and child support orders after a divorce complaint is filed by one of the parents.

Additionally, if you are seeking to move out of the Commonwealth with your child (called a “removal” or “move away” case), you may seek that relief in a divorce case.  Move away / Removal cases can be very difficult and should be approached cautiously.  For more information about move away cases, click here.

For additional information about divorce, discovery in your divorce case, or other questions about any family law matter call our expert lawyers today or send us an email.  Our Boston divorce attorneys are highly experienced and available to speak with you at your convenience.  Our firm is technologically efficient and in many cases, we can conduct business electronically which reduces the need to meet in person.  We can also meet with you by phone, in person, or by videoconference for a face-to-face conversation.  Because we offer a free, private consultation, there is no risk to you and you will be delighted by our service and attention to detail.  Feel free to call or email our office today.

We field questions about divorce all day long.  These are some of the most commonly asked questions about divorce in Massachusetts.  Our attorneys are available to speak with you if you need help with your divorce.  For our New Bedford office, call (508) 316-9720.  For our Boston office, call (617) 795-3611. And our Hingham office, call (781) 908-0551.

Yes.  In Massachusetts, there are basically two kinds of divorce cases: uncontested cases filed under Section 1A, and contested cases filed under Sections 1 and 1B.  Section 1 of the Mass. General Laws, Chapter 208 sets forth the various grounds for divorce, including cruel and abusive treatment, failure to support, etc.  Click here for information about the grounds for divorce.  Section 1B of the same chapter allows for divorce based on an “irretrievable breakdown” of the marital relationship.  Basically, Section 1 of Chapter 208 allows for divorce based on “fault” and Sections 1A and 1B allow for divorce based on “no fault”.  Click here for more about fault vs. no fault divorces.  The grounds for which the divorce is filed can make a significant difference in the cost and time it takes to complete the divorce.  Also, there might not be any significant reason to try and divorce based upon the fault of one party.

A Complaint can be modified at any time during the divorce with the filing of a Motion to Amend, which is generally allowed by the court without a need of appearance.

A divorce becomes final, or “absolute”, 90 days from the date that the Separation Agreement is filed (if the divorce is filed under Section 1A) and executed by all parties and the court.  In the interim, the parties will have a “judgment nisi”.

Yes.  Although a Separation Agreement may likely outline all the facts of the case and all the agreed upon topics of your divorce such as child support, visitation, tax filings, division of property, alimony, those agreements still need to be confirmed by the Court.  At the time of filing of the fully-executed separation agreement, a hearing date will be assigned so that the Judge can inquire if the agreement is fair and then execute the same.    The divorce would become final 120 days from that date (if the divorce is filed under Section 1B).

The court makes custody order in every case where children are involved. The court prefers to have a visitation schedule agreed to and signed by both parties and their respective attorneys so that a routine is set for the parties’ children.  If custody and visitation is not agreed upon, then the court listens to both sides and sees where the children have primarily resided with and who has been the primary caretaker for the children.  A child’s best interest is always the Court’s primary concern when an order is made.   For more information about child custody, click here.

Both parents also have to participate in and complete a parenting course.

No, the court does not order alimony in every case.  An order of alimony would be ordered, generally speaking, if:

1. One spouse requests spousal support and it would be appropriate under the circumstances based on that spouse’s need;
2. The other spouse has the ability to pay spousal support.

Alimony would be paid depending on the length of the marriage.  The judge could order that it be paid weekly, biweekly, or monthly.   If the parties were married for over 20 years then the order could be made that one spouse will pay alimony indefinitely.  If the parties were married for under 20 years the judge would determine how long alimony would be paid for based on the statutory guidelines.  For more information about alimony, click here.

Parties are free to waive alimony.

The court does not issue a child support order in every case.  If parties agree that no child support will be paid, then the court will not likely order child support paid by either party.  A child support order is issued when one parent requests that the court enter such and order and then the amount of child support depends on the needs of the children and the ability of the parents to pay.  If both parents earn the same wages and the children are with both parents equal time an order of support may not likely be issued.  If a party is not earning to their potential , the court considers all relevant factors including education, training, health, past employment history of the parties, and the availability of employment at the attributed income level.   The child support guidelines are based on the amount of time spent with each parent and the earnings of each parent.

No.  Both parties, one party, or neither party can have an attorney.  A party who does not have an attorney can speak with and work with the other party’s attorney if they have one to try to resolve the outstanding matters.  However, a party without an attorney should be cautious because the other party’s attorney is not providing them with legal advice.

Divorce mediation is available to any parties that agree on mediating their divorce through an experienced attorney/mediator who will work closely together with both parties in helping them make decisions to resolve their matter, which saves both time and money.  Only one brief court appearance is necessary when mediating a divorce and it is a quicker way and more cost effective way of getting divorced.
For a complete guide to divorce mediation in Massachusetts, click here.

The best way to find an attorney in your area is to visit the websites available for attorneys in your area or to call the local county bar association and they will refer you to an attorney that best matches your needs.  You should interview at least 3 divorce attorneys before hiring one.  Hire the attorney that has significant experience in divorce and only handles “family law” matters (i.e. don’t hire an attorney that practices in multiple areas of the law, since they will be far less knowledgeable about divorce law than an attorney that practices only in that area), hire the attorney that fits your budget, hire an attorney that appears technologically advanced in their office because that will save you money, and hire an attorney that you feel comfortable with.  The best attorneys are the ones that achieve results and set appropriate expectations in any given case.  Finally, the best divorce attorneys are always willing to settle a case when the terms are acceptable to the client, but are willing and able to be “aggressive” when needed and articulate in court.

Every document that is filed with the court is signed under the pains and penalties of perjury.  The husband and wife are also ordered to attach their W2s and/or 1099s to their financial statement.  If you have a concern that your spouse’s financial statement is inaccurate, you should hire an attorney.  Lawyers have a myriad of tools available to obtain information.

Yes, parties to a divorce case may always change attorneys even if the case is ongoing.  There are many reasons people change attorneys during a divorce case and it is commonly done.  Some reasons may include that the client is unhappy with the work the attorney is doing (or failing to do), there is a lack of communication between the lawyer and client, the client’s demands cannot be reasonably accomplished by the attorney, the attorney’s fees are exorbitant, and so on.  Changing attorneys is commonly done and generally is not frowned upon by the court.  Notably, clients usually sign a Retainer Agreement with an attorney when they hire the attorney to represent them.  Even if you choose to hire another attorney you would still have to pay the legal fees outstanding with the first attorney.

Yes.  Reconciliation can be done at any time.  In those cases, we would simply write a letter to the court and advise them that the parties are attempting reconciliation if we want to keep the case open; or alternatively, file a request to dismiss the case.

Perhaps. The answer depends on the financial circumstances and needs of the parties and also if one party is causing extreme amounts of legal hours be spent unnecessarily, then the court may order one party to pay the other party’s court costs and legal fees.

The court may appoint a Guardian-ad-Litem (GAL) to represent and act as attorney for the child with the child’s best interests in mind.