My spouse
said that they would not give me a divorce. Can I get a divorce without their cooperation?
Yes. I often say that it takes two to get married, and one to get divorced.
Although it may take longer if the other person does not cooperate or respond, with the appropriate court motions
and hearings, you can still get divorced.
How Long Does the
Process Take to Obtain a Divorce?
Technically,
parties can walk into the court with all the required pleadings and a fully executed separation agreement, have their matter
heard that day, and be divorced in 90 to 120 days. In contested matters, given the numerous court hearings, pretrial conferences,
etc., it may take up to a year. In Massachusetts, all divorces follow a 14-month track.
Do We Have to Go to Court?
Yes. However, if you can't reach an agreement,
then a court date is set and a judge hears the case. Technically, even if you reach an agreement, the judge has to approve
it and find it's fair and equitable based on a finding of facts.
What Are the Steps
Necessary to Obtain a Massachusetts Divorce?
There
are seven basic steps:
1. you must prepare and file either a complaint
for divorce or joint petition for divorce.
2. if your matter isn't proceeding on a joint
basis, the defendant must be served the complaint and summons.
3. both parties must fully disclose their finances,
including all income, expenses, assets and debts.
4. the parties must discuss and attempt to settle
the issues of custody and the parenting issues, such as health insurance, property division and support, and merely address
the future issue of college education, if applicable.
5. parties attempt at arriving at a separation
agreement. This document addresses all rights of the parties and identifies any rights that have been waived. A comprehensive
list of all the terms in the dissolution of your marriage is then presented to the court.
6. the agreement is submitted to the court;
alternatively, if no agreement has been reached, the case proceeds to trial.
7. Finally, judgment is ordered. The court issues a final order that the marriage be dissolved and, if the parties have
not agreed on their own, the terms in which each shall follow.
What if My Spouse Avoids
Service of The Summons or Complaint?
If
your spouse cannot be found, the court can still grant your divorce. There are options, such as publishing the complaint in
the local newspaper and waiting a period of time that must pass before your divorce becomes final. The judge can grant the
divorce and custody-related issues, but support orders are a bit more complicated, unless the court can assume jurisdiction
over certain property to satisfy support needs.
Once We Start With the
Divorce Process, Should I Close Bank Accounts?
While
this may seem like a legitimate act of self-protection, be careful of violating Rule 411 (Massachusetts' asset restraining
order). Additionally, you should know how acts of self-protection often escalate into a full-scale war of hide and seek. Safe
deposit boxes are often questioned, gifts suddenly become loans, and antiques or collections suddenly disappear.
Can One Lawyer Represent Both Spouses In Order to Save Money?
One lawyer can never really represent both parties in a divorce or paternity action, but it is
not always necessary to have two lawyers. In simple matters, one of the parties can appear "pro se," that is, representing
him- or herself. One lawyer draws all the necessary documents without the need of a second lawyer. However, a word of
caution: if financial support, custody or property division is involved, the self-represented party should at least consult
with a lawyer and get input before signing any agreement. Misunderstandings about tax implications, merger and survival language,
or other complicated issues could later result in unforeseen issues.
What
Is a Retainer Fee?
This is the fee law firms initially
charge for taking your case. It is generally not the entire fee. Hours spent on your case are typically credited against the
retainer fee. If and when the cost goes beyond the initial retainer, an additional retainer check is usually required, or
the additional hours are paid for in the manner agreed upon between you and the attorney.
Would I Have to Pay for the Initial Meeting or Interview With a Lawyer?
It depends, and you should ask when setting your appointment. If it is clear that
you are not looking for a lawyer to hire but are seeking legal information, then you should expect the lawyer to charge for
his or her time.
Is It Acceptable to
Discuss the Divorce With My Spouse?
Other than matters of reconciliation or co-parenting, leave the other matters to the lawyers. What you say to your
spouse may compromise your negotiating position and require more work by your lawyer later.
Who Gets Custody of the Children?
We
don't hold "title" in our children; rather the standard that the court tries to use is what is in the best interest
of the children. When both parents are equally fit, the court will usually place the children primarily with the parent who
has been the primary caregiver – the one who was primarily responsible for the everyday needs of the children during
the marriage. In other cases, the court may order an equal custody split. However, what will usually happen is that one parent
gets primary custody and the other a portion of the overall parenting plan.
What Is the Difference Between Physical Custody and Legal Custody?
Physical custody determines which parent the child lives with most of the time. One parent can
have sole physical custody, or both parents can have joint physical custody. If one parent has sole physical custody, the
other (noncustodial) parent gets a visitation schedule as part of the parenting plan. Legal custody is who gets to make the major
decisions involving that child. One parent can have sole legal custody, or the parents share joint legal custody.
Do Mothers Always Get Custody of Children?
No. Although it was once presumed that young children were better off living with their mothers,
the Tender Years Doctrine has kicked in, and many more fathers now seek custody. A mother now must prove that she is in fact,
the principal nurturing parent or that, for some other reason, the children would be best served by being placed in her custody.
Can the Children Choose With Whom They Want to Live?
To some degree, a child's preference may be weighed in light of their maturity and the reasons
for the preference. There is no set age at which a child's preference will control the court's determination. It is only one
of many factors when determining the best interests of the child.
What Can Be Done About
a Child Who Refuses to Visit?
Not much. Hostility between
parents is often behind the child's reluctance. Forcing the child – either by parental pressure or by court orders –
tends to intensify the problem. Counseling is one hope for altering the child's attitude. It is not uncommon for the child
to outgrow this reluctance and even to reject the parent who was encouraging it early on.
How Can I Prepare Myself for a Custody Battle?
Getting
an attorney is the first step. Start to keep a calendar and a journal documenting everything you do. Recreate the past six
months, writing down everything you've done and everything your spouse has done. You need to show the court that you are the
primary caretaker of the children and that you are able to parent on your own. Make a list of all the things you do for your
children each day. Prepare a photo album with photos of you with your children happy in your care.
Anything you have – journals, photos, school records, bank records –
will be admissible in court, even if we need to have them authenticated.
How Is the Amount of Child Support Determined?
In Massachusetts, presumptive guidelines for child support are based on the income levels of both
parents, the number of children, and the issues revolving around child care and health insurance costs. The noncustodial parent
typically pays support to the primary custodial parent.
Can I Get Support for
My Children if the Other Parent and I Were Never Married?
Yes.
While the type of case that will need to be filed will be different, the results will be the same. Marriage, or lack thereof,
does not affect the obligation to pay child support. On the other hand, if the parents were never married, there will be no
possibility of obtaining any spousal support, otherwise known as alimony.
Which Parent Can Claim the Dependent Tax Deduction for a Child?
When parents divorce, the custodial parent typically claims the exemption, or executes IRS form
8332 releasing the exemption to the noncustodial parent. Some parents rotate the benefit each year, take the benefit for half
of the children, or weigh the actual tax benefit received before making any decisions.
If Alimony Is Part of the Divorce, How Long Will It Last?
It depends. In a long-term marriage, an alimony award will last until the recipient spouse marries,
the death of either party, or the modification of an existing order when either party demonstrates a change in circumstances
from the most previous order.
Will Living With a New Partner Affect My Alimony
Payments?
Maybe. The issue is whether
the new situation is one that warrants a change in circumstances. If you are now co-mingling finances with another person,
no longer paying certain expenses, etc., the court may make findings that a modification is warranted.
How Are Assets and Debts Divided in a Massachusetts Divorce?
Massachusetts is an equitable distribution
state. While equitable doesn't always equate to equal, the judge has discretion to distribute property and debts on various
factors. There is no presumption of a 50/50 split in either case, but it is the normal starting point, as homemaker contributions
are generally given equal weight with financial contributions during the marriage.
Is My Retirement Account Considered Marital Property?
Everything acquired during the marriage, no matter whose name it is in, is considered marital
property. Additionally, any increase in value of premarital property is considered marital.
Can Someone File Bankruptcy to Avoid Child Support or Alimony?
Generally, bankruptcy will discharge property obligations but will not discharge child support
or spousal maintenance obligations. The bankruptcy court looks at the substance of the obligation and not just the language
of the decree to determine what is – or isn't – considered support. An appearance in the bankruptcy court
may be necessary to protect your rights under your support order or decree.
Can Every Case Be Settled Before Trial?
Technically,
yes, but realistically, no. Some cases can never be settled, because of either the personalities of the parties or an honest
disagreement to the facts or interpretation of the law. In these cases, a matter can only be resolved with a trial. Where
only certain issues are contested, it is possible to try those issues and stipulate (agree) on the rest.
What Is Involved in a Trial?
Opening
statements, direct examination of the witnesses by the plaintiff, cross-examination of same by the defendant, direct examination
of the defendant's witnesses, cross-examination by the plaintiff, closing arguments, and the judge's ruling.
What Is the Difference Between Direct and Cross-Examination?
When your lawyer questions witnesses called on your behalf, it is called direct examination. At
the conclusion of the direct examination, the other lawyer may question the witness further in an attempt to undermine or
discredit that testimony by showing inconsistent statements, bias, ulterior motives, etc. This is called cross-examination.
If There Is a Previous Order, Can It Be Modified?
Yes. Massachusetts has what is known as the "change of circumstances" rule. Other than
a child support review, which automatically triggers every three years, if the circumstances change in any other support-,
health insurance-, or parenting-related issue, then the basis for the orders may warrant a modification.
If your case is not going the way that you want, consider contacting
The Law Offices of Robert H. Fennessy. Attorney Fennessy appears in the probate and family courts in Norfolk, Bristol, Worcester,
Middlesex, Plymouth, and Barnstable counties.
