People contact me all the time about getting divorced. It is often their first attempt to find out how it works. The first thing I tell them is to rest assured. You can get a divorce in Massachusetts whether or not your partner agrees. The days when a person was denied a divorce are long over. This blog focuses only on "no fault" divorces. No fault divorces occur when there has been an irretrievable breakdown of the marriage and the parties no longer desire to be legally married. There are two basic ways to get divorced - either by agreement or by Court Order.
The husband-wife, husband-husband or wife-wife family relationship is created by law. Unlike being born into a family, your spouse is someone you have chosen to be related to. Marriage is a consensual union "blessed" by the state. In order to end this union for whatever reason you choose, the state, acting through the court system, has to decree the marriage over.
Certain legal realities attach as soon as people get married. For example, all property acquired by either spouse becomes property of the "marital estate" (in the absence of a prenuptial agreement to the contrary), you become your spouse's legal heir, and, should you have children, you become financially and legally responsible for the care of your children.
Among the important concerns a divorce will address are:
- Children The well being of children of the marriage should supercede any considerations relating to you or your spouse;
- Child support - will you have to pay it or will it be paid to you;
- Division of marital assets - in the absence of a binding prenuptial or postnuptial agreement, assets acquired during the marriage are part of the marital estate and divisible upon divorce, assets include businesses owned by the parties;
- Division of marital debt - debt accumulated during the marriage is a joint obligation and will be divided between the two of you;
- Division of Pensions, Deferred Compensation Accounts and other financial assets - regardless of whose name these financial assets are in, they are presumptively joint property and will be divided; and
- Alimony - will you have to pay it or will it be paid to you.
The end point in the divorce process is a.) providing for the children of the marriage by determining primary physical custody, the payment of child support, parenting time, and legal custody*; b.) dividing marital assets and debt into equitable shares including the vehicles necessary to do that; disposition of owned real estate both short and long term; and determining whether alimony is warranted either presently or potentially in the future.
There are two basic ways to get divorced: contested or uncontested. The endpoint in both approaches is usually the same, the difference is how you get there. Couples who are able to cooperate and for whom there are no major sticking points are well served by using an experienced mediator before filing for divorce. A mediator goes through the same analysis that a Judge will employ in a Court of law and requires the parties to provide completed financial statements and written evidence of assets and obligations. The mediator will draft a comprehensive document called a Separation Agreement that is almost like a cookbook that first identifies everything involved in the dissolution of the marriage and then sets forth a manner of dividing everything up equitably including the care of any minor children of the marriage. The parties are then encouraged to get independent legal advice before committing to the Separation Agreement. If agreement is reached, the parties file a Joint Petition for Divorce attaching the Separation Agreement. Joint divorce petitions are placed on a faster track and involved a hearing at which a Judge reviews the proposed Separation Agreement and determines whether it is fair and reasonable. If so, a divorce nisi is granted that becomes final in one hundred twenty days. All of the official requirements for a Joint Petition can be found here: https://www.mass.gov/guides/get-a-no-fault-1a-divorce
If the parties cannot agree, they file a contested divorce. Contested divorces are ultimately ruled upon by a Judge in Probate Court and contain the same elements as the Separation Agreement in a joint filing. The Judge reviews all of the financial information submitted by the parties, considers evidence in the form of testimony or documents that bear upon the issues to be determined, and ultimately enters an order that spells out who gets what. Contested divorces take longer and are ordinarily more expensive because both parties ordinarily retain lawyers to guide them through the process. Contested divorces often include the entry of temporary orders which are extremely important and intended to govern the relationship of the parties and care and custody of children while the divorce wends its way through the court system before it is decided. For more on no fault, contested divorces, see https://www.mass.gov/guides/get-a-no-fault-1b-divorce
* The parents of minor children are required to take a parenting course before the divorce can be granted.