The Dissolution of Marriage – April 2007

The following is not legal advice. It is information concerning the steps involved in various legal matters. If you need legal advice about your specific case or situation, please contact us to set up a low cost consultation.

The Dissolution of a Marriage

In Massachusetts divorce is initiated either by the filing of a Joint Petition for Divorce (where the parties have reached a settlement in advance of filing) or by filing a Complaint for Divorce either claiming fault or no fault grounds. It is not necessary to show that your spouse has caused the divorce. Most divorces are filed on the grounds of irretrievable breakdown, commonly called no fault. While some divorces are contested, (no agreement) on issues of property, support, etc., few are actually contested on the grounds for the divorce itself. The grounds for the divorce do not necessarily determine how the property will be divided or how much support will be awarded, although under extreme circumstances, fault and wrongful conduct can have an impact on the final outcome.

The time it takes to complete a divorce, depends on how quickly both husband and wife can agree to how to handle custody of your children and child support, and the division of all of your property. If you can not agree and need to go to court to have a Judge decide the issues your divorce will take considerably longer then if, with the assistance of counsel or through mediation, reach an agreement prior to filing or in advance of any trial date.

An annulment is different from a divorce because it does not dissolve the marriage; rather it declares judicially that no marriage ever existed. However, given the importance of the institution of the marriage, annulments are not easily allowed by the courts. The statutes and the case law require very specific facts which go to one’s capacity to marry or to whether the marriage has the essentials of the marriage relationship.

Looking at capacity, intra-family or multiple marriages will be annulled as a matter of law. Similarly, in cases of underage, insanity or idiocy, marriages will be voided on the grounds of incapacity.

The following are traditional grounds for seeking an annulment: when the facts present fraud, impotency, duress, concealment of a pregnancy by another male, or concealment of contagious diseases. An annulment will only be allowed on these grounds when a case is made that the problem goes to the so-called essence of the marriage relationship.

Once a divorce has been filed, an answer must be filed by the other party within twenty days from the service of the original papers. An answer is generally the method by which the opposing counsel enters the case. It is very important to consult an attorney as soon as you are served a complaint for divorce, so that you can properly prepare and file your answer or counterclaim in time. An answer may contain a counterclaim, an opposing complaint which states the responding spouse’s requests from the Court.

To file for divorce in Massachusetts, the following must have occurred: The parties lived together as husband and wife in Massachusetts; The reason for the divorce occurred in Massachusetts; or The parties lived together as husband and wife in Massachusetts and the cause of action occurred while at least one of the spouses was living in Massachusetts. If none of the above applies, you can file for divorce in Massachusetts if you have lived in Massachusetts for one year preceding the commencement of the divorce.

If you cannot wait one year to file for divorce for financial or other urgent reasons, there are no residence requirements for the filing of a Separate Support Complaint provided you are living in Massachusetts at the time the complaint is filed.

A complaint for divorce is typically filed in the county in which the filing party currently resides in or in some cases, where the couple last resided together. You do not have to be living apart to file for divorce.

Temporary Orders

At the time the divorce is filed, it is often important to seek a temporary court order, which will be in effect while the divorce is pending. These temporary orders include custody and parenting time allocations, child and spousal support and when appropriate, temporary restraining orders to prevent abuse. The initial orders by a judge have a significant impact in your case. It is vital that you consult with an attorney prior to any hearing for temporary orders. Our office will work closely with you to navigate this, often difficult, step in your divorce.


Very shortly after the divorce commences, the attorneys will engage in a process called “discovery.” During this process, all assets, liabilities and income will be identified and valued. Massachusetts has mandatory discovery requirements that must be met by both parties. This process can be undertaken informally by the attorneys or through what is known as “formal discovery,” utilizing document production requests, interrogatories, depositions and subpoenas. The formal discovery process can be very time consuming and complex.

Division of Property

Massachusetts is an equitable distribution state, meaning that the law requires that all of the property be divided in a fair and equitable fashion. Equitable does not necessarily mean equal, although the law may presume an equal division as a starting point. Generally speaking, property brought into a short-term marriage by either party is that party’s separate, non-marital property. Also, property received during the marriage by one party as a gift or inheritance may be considered non-marital property. All property acquired during the marriage with marital funds or through marital effort will likely be deemed to be marital property, regardless of how it is titled. Property owned by one party prior to the marriage but which has increased in value may be viewed in part as a marital asset. What is marital property and what is non-marital property is often the subject of dispute in a divorce and often requires detailed and complicated tracing efforts. Pensions, retirement plans and savings plans which one or both parties contributed to during the marriage can be divided at the time of divorce.

Many property issues revolve around the value of the property itself, particularly if there is a professional practice or business involved. Expert witnesses may be required to assist in the valuation process.

Spousal Support & Alimony

Massachusetts has a spousal support statute, setting forth several factors that the court must consider in determining the amount and duration of spousal support. Unlike child support, there are no guidelines or formulas as to how the court should award spousal support. Spousal support cases are by nature very individual and often unpredictable. In a long marriage or one in which one spouse sacrificed a career to stay home with children, spousal support might be the most difficult issue to resolve after parenting concerns. The court will also consider how best to maintain health insurance for a both spouses after the divorce.

Parental Rights and Responsibilities

In Massachusetts, the law provides for both shared parenting and sole custody. Parental rights deals with the concepts of shared custody, physical custody, legal custody, visitation and parenting plans. More often than not, one parent is designated as the physical custodial parent and both parents act equally as the legal custodian of the child or children. There is no legal presumption in favor of shared parenting. It is simply an option that the court has, and is often a preferred resolution when the parents can demonstrate a history of, and willingness to continue sharing parenting responsibilities. Shared parenting is not feasible or appropriate in many cases.

More and more, both parents believe they should be awarded full or joint physical custody of their children. Most judges require very a specific set of circumstances before they will order a shared custody arrangement. The majority of court cases are still resolved with one party receiving sole physical custody. The recent trend has been to eliminate labels such as custody and visitation. Instead, parents enter into comprehensive agreements called “parenting plans”. Such plans are beneficial to the parties and the children because they avoid the stigma of terms such as “non-custodial parent” and “visitation” while expressly stating what is to be expected of both parents.

Child custody litigation is legally complex and emotionally difficult for clients. It is necessary when children need protection from a parent or when a parent seeks to alienate the other parent. Child custody trials often require the use of a Guardian Ad Litem (GAL) or other professionals to assess both parents and the children in order to provide the court with a recommendation.

Massachusetts requires that all divorcing parents attend a parent education course on the effect of divorce on children and adults. The program is five hours and generally is done in two sessions. Divorcing spouses may not attend the same session. You must have your certificate to be granted a divorce, unless the Court has waived the requirement.

In some circumstances, there are jurisdictional questions as to whether the Court can make orders regarding a particular child. There is a special statute (called the Uniform Child Custody Jurisdiction Act (UCCJA) that has been adopted by Massachusetts and most states in some form) that address these issues. In short, a child has to have lived in a location for at least six months (or from birth if under six months old) to establish that state as his or her home state. If the so-called home state is unclear, the Courts from the competing states will consult with each other to determine which states should handle the matter.

Child Support

All states have child support guidelines, which set forth how child support is to be determined. Massachusetts law requires parents to support their children until the child turns 18 or until they graduate from high school or is emancipated. More often, a parents obligation to support their children continues until the child is 21, if the child remains dependant on the custodial parent. Where a child is attends college full time, the obligation to support may continue until the age of 23. The support obligation can continue indefinitely for a disabled child.

Massachusetts is an income-shares formula state, which means that child support is calculated by examining the total family income and then apportioning the support obligation. Cases with combined family income in excess of $100,000.00 must be decided on a case by case basis.

Post Divorce Issues

Often, divorcing couples with children will have to later modify the child related provisions of their divorce judgment as their children’s needs further develop. A significant increase or decrease of income by either spouse, the need to move out of state, the need for more or less visitation or the need for a change in physical custody are just a few common reasons that an individual would seek to modify their divorce judgment.

Additional post litigation takes place where a spouse does not comply with the terms of a divorce agreement or decree (orders after trial). The Court has the authority to enforce compliance via a contempt action. A contempt complaint is where one party alleges that the other party has violated the terms of the agreement, order or judgment. The most common areas in which contempt actions are filed are child support, parenting issues and property disbursements or division. A party found in contempt may face financial sanctions, jail time, loss of property and may be ordered to pay the filing party’s attorney’s fees and costs. We have substantial experience representing both plaintiffs and defendants in contempt actions and work with our clients to protect their rights and interests.

The firm of Berid and Schutzbank hopes that this article has been informative. If you have specific questions about your particular situation, please call us at (978) 459-0396 or visit our contact page to submit an inquiry.

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