Divorce FAQ

1. What is the difference between a "fault divorce" and "no fault divorce"?

a. In a "no-fault divorce", the parties must only prove that the marriage has broken down irretrievably, or that the couple has irreconcilable differences. Basically, if one person wants a divorce, the couple will be divorced. In a "fault divorce", the plaintiff must prove that the defendant has committed a wrong that allows the plaintiff to get a divorce. People think that a "fault divorce" gives the plaintiff an advantage in getting property division or alimony. This is not the case as the Court must consider the same factors to decide these issues in both "fault divorce" and "no-fault divorce".

2. Can I get alimony?

a. Alimony is determined by G.L.C. 208, section 34, which lists the factors a judge must consider in awarding alimony. There are mandatory factors as well as optional factors. Some common situations where alimony is appropriate include:

i. One spouse cannot support himself or herself due to health issues.

ii. The marriage was not short term and there is a significant difference in income between the spouses.

iii. One spouse has excess income over his or her needs and the difference in net income between the spouses is very large.

3. How do I start divorce proceedings?

a. If the divorce is uncontested, both parties file a joint petition for divorce with a separation agreement and an affidavit of irretrievable breakdown of the marriage. Such agreement must address all aspects of the divorce.

b. If the divorce is contested, a divorce is started by filing a complaint for divorce and serving a summons and a copy of the complaint on your spouse. The summons is provided by the court when you file for divorce.

4. What is meant by "grounds for divorce"?

a. This means the reason for the divorce. Massachusetts will only allow a divorce for a recognized reason set forth in the statute. "Irretrievable breakdown of the marriage" is the most common reason. It is also known as a "no fault divorce", which basically means you can get divorced if you no longer love your spouse. "Fault" grounds for divorce in Massachusetts include:

i. Adultery,

ii. Impotency,

iii. Desertion for at least one year,

iv. Addiction to drugs/alcohol,

v. Cruel and abusive treatment,

vi. Refusal to support spouse when able,

vii. Confinement in a penal institution for five or more years.

5. If my spouse and I signed a separation agreement, do I still need a divorce?

a. Yes. A separation agreement is not enforceable without an approval by a judge. Massachusetts must approve the terms of the divorce. Massachusetts is represented by a judge who must determine whether the agreement is fair and reasonable before the divorce can be final.

6. I was served with a divorce complaint. Can I oppose the divorce?

a. As Massachusetts allows divorce on the grounds of irreconcilable differences, you can't oppose the divorce. All your spouse needs to prove to get a divorce is that he or she can't live with you or doesn't love you. This grounds for divorce is frequently called a "no-fault divorce". A "fault divorce" can be contested but it will almost always be changed to a "no-fault divorce" before the case is over.

7. How is property divided in a divorce?

a. In Massachusetts, property is divided up between spouses based on an equitable division of property. In other words, the court will consider the following factors when allocating property:

i. Length of marriage

ii. Conduct of parties during marriage

iii. Age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties

iv. Opportunity for each future acquisition of capital assets and income

v. Contribution of each of the parties in the acquisition, preservation or appreciation in value of their respective estates

vi. Contribution of each of the parties as a homemaker to the family unit

Remember, equitable division of property does not mean an equal division, it means a fair division.

8. What are temporary orders?

a. Temporary orders are issued by a Court before final judgment enters in a case. Frequently, people in a divorce are unable to cooperate with each other. A judge will issue orders during the pendency of a divorce to address the issues that cannot wait until the final judgment. The following issues are typically addressed in temporary orders:

i. Should one person vacate the house?

ii. Which parent will be primarily responsible for the custody of the children?

iii. How often will the other parent visit the children?

iv. What money is paid from one spouse to the other for child support or spousal support?

v. Who gets the individual assets like cars, furniture, etc.?

9. What is a legal separation?

a. A separation occurs when a couple voluntarily lives apart. Such separation is approved by a Judge and requires a Judge to consider support, child custody, health insurance, and use of property. Massachusetts does not have a "legal separation". A separation is not a divorce, so the couple remains legally married. If they want to get divorced they must file a new action.

10. How do I stop my spouse from transferring assets?

a. File a complaint for divorce and serve your spouse. Upon filing for divorce, an automatic restraining order is issued. It is binding on the Plaintiff upon filing the divorce and binding on the Defendant upon service of process on the Plaintiff. This means that once the initial divorce papers are served on the spouse, the spouse is prohibited from transferring or hiding assets except for ordinary living expenses or to pay his or her attorney. If that person wants to use assets for another purpose, he or she needs the written consent of the spouse or an order of a Judge.

11. What is joint custody?

a. Joint custody means shared custody. Child custody is broken down into two groups, legal and physical. Legal custody is the power to make decisions such as education, health issues, etc. With joint legal custody these decisions are made together. Physical custody is the right to provide day-to-day care of the child. Joint physical custody means that the child's time is split between the two parents. The parent responsible for the child will make the normal daily decisions without having to consult the other parent. In divorces, joint legal custody is the most common result, and one parent will usually have more parenting time than the other.

12. My spouse and I do not agree on child custody and visitation issues. How will a court handle these issues?

a. Custody is decided by determining what is in the best interest of the child. The Court may award custody to either parent, regardless of gender, based on the best interests of the child. The typical custody order is overnights on school nights with the custodial parent; other time, including weekends, holidays, and vacations, usually shared between the two parents. Also, it is common for the non-custodial parent to have weekday dinner visits with the children.

13. My child wants to live with my spouse. Will a court decide custody based on my child's wishes?

a. Typically, children do not decide custody. In a contested case, the Judge will decide custody. If the child is over age 14, the Judge must have the child interviewed to determine the child's wishes. However, this is not the determining factor. At some point, the child will be able to decide the issue. Usually this occurs when the child is 16 or 17. If the child is under 14, the Judge may consult the child, but should make decisions based on the best interest of the child, not the child's wishes.

14. Can I suspend visitation because I am not receiving child support?

a. No, some states allow this, but Massachusetts does not.

Getting Legal Help From an Experienced Chelmsford Family Law Attorney Is the First Step

You may feel overwhelmed, but I can help you work out custody and support issues. Call Broderick Law Firm, located in Lowell, at 978-674-7146 or send an e-mail today. I take clients from Middlesex County, including Andover, Westford, Concord and the surrounding areas.