FAQ about divorce

 

 

1) How long does it take to get divorced ?

 

It depends on whether it is contested or uncotested. Contested divorce can take anywhere 1 to 1 1/2 years from the date of filing to the issueance of the final divorce decree. An uncontested divorce with an agreed upon separation agreement would take 6 months.

 

2) Does an uncontested divorce require a court hearing?

 

Yes, there is a court hearing involved in an uncontested divorce; however an uncontested divorce hearing is routine, quick and pretty painless.

 
 

3) Does Massachusetts recognize drug addiction as grounds for divorce?

 

Yes, Massachusetts recognizes the gross and confirmed habits of intoxication caused by voluntary and excessive use of intoxicating liquor or narcotics as grounds for divorce. ... The mere use of liquor or drugs by a married person is not of itself grounds for divorce. ... The statute requires that the use which leads to the habits of intoxication must be voluntary and excessive. The voluntary requirement has not presented any problem of statutory interpretation, but the question of what constitutes excessive use may be problematic in some instances. Even if the misuse of liquor and drugs is intermittent, as long as it is habitual and repeated on a fairly regular basis, the divorce can be allowed.

 

 

4) Can I get a divorce without a lawyer in Massachusetts?

 

 

While it is usually best to enlist the aid of an attorney when seeking a divorce, especially when there are children and assets involved or you have trouble communicating with your spouse, it is still possible to obtain a divorce without an attorney.

 

There are different types of divorce -- (1) "uncontested fault," (2) "uncontested no-fault," (3) "contested fault," and (4) "contested no-fault" -- and you will need to determine which is applicable to your situation in order to proceed.

 

5) After one signs divorce papers before a judge in Massachusetts is there a waiting period or are you divorced immediately?

 

If the judge finds that the facts support an irretrievable breakdown of the marriage and approves the agreement, an order will be entered accordingly. Thirty days after the order is entered (usually the date of the hearing), a Judgment Divorce Nisi is issued. The Judgment Divorce Nisi becomes an absolute Judgment of Divorce after 90 days. G.L. c. 208, § 1A. If you seek a divorce under this section, the divorce is not final until at least 120 days (roughly four months) have passed since the judge approved the separation agreement."

 
 

6) Can I suspend visitation because I'm not getting child support?

 

No, Massachusetts does not allow this because it would likely not be in the best interest of the minor child.

 

 

7) Does custody and visitation effect the amount of child support?

 

Yes. If physical custody is granted to one parent, then the other parent will pay child support. However, a traditional physical custody award assumes that the child spends approximately one third of the time visiting the other parent. If the time spent with parents varies from one-third visiting and two-thirds with custodial parent, then child support may vary from the child support guidelines. The child support guidelines call for a different formula when time spent with the child approaches an even split. Furthermore, an argument can be made that failure of a non-custodial parent to exercise his or her visitation rights may result in an increase in child support obligations.

 

 

8) I don't want to pay child support anymore, can i do this by reliquishing my parental rights?

 

Generally, no. The courts will only terminate parental rights when there is another person adopting the child to take over the child support obligation or in extreme cases of abuse. The focus of child support is the child and not the paying parent. Termination of parental rights harms the child by reducing the parents of the child by one. This is considered harmful to a child. Certainly, a child support obligation can be burdensome to a parent. However, the parent does not have the option of eliminating child support by terminating parental rights.

 

 

9) I have custody of my children, I want to move to another state. Can i just take my children and move?

 

Once a divorce has been started in Massachusetts, the children may not be removed from Massachusetts without permission of the other parent or a judge. When ruling on a request to remove children, the court will apply the "significant advantage test." Under this standard, the court will examine how the move will affect the children including if the move will result in reduced contact with the non-custodial parent.

 

 

 10) My child wants to live with my ex spouse. Will the court decide custody based on the child's wishes?

 

As a general rule, children don't decide custody. In a contested case, the Judge will decide custody. If the child is fourteen years old or older, 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. However, the judge should decide custody based on the best interests of the child and not the child's wishes.

 
 

11) My spouse and I cannot agree on visitation or custody. How will the court decided?

 

Custody is decided by determining what is best for the child. The court may award custody to either parent, regardless of gender, based on the best interests of the child. Generally, custody is viewed as allocating time with each parent. The most common custody order is school nights with the "custodial parent" and the other time, including weekends, holidays, and vacations, split between the two parents. In addition, it is common for the "non-custodial parent" to take the child to dinner one evening each week.

 

 

12) My spouse and I are separated and the children are with my spouse. Can i see the children?

 

Until you get before a Judge, there is nothing that requires the custodial parent to allow visitation. While morally, every parent should always facilitate visitation, this does not always happen. Without a court order, there is nothing that compels visitation.

 


 13) What happens when a custody or vistation order is violated?

 

If an order of the court is violated, a contempt action can be filed against the person who violated the order. In a contempt action, the court can fashion a remedy to correct the behavior in the future or to punish the violation. While contempt is available when any order is violated, contempt for custody or visitation orders may be treated differently. The court usually does not punish a person who fails to exercise visitation. If one parent can visit every other weekend and refuses to visit, there is little a court can do since the court can't force a parent to visit the child. If a parent takes the child in violation of an order under circumstances where it appears that the parent does not intend to return the child, it may be appropriate to go to court for an emergency order or even consider criminal charges of parental kidnapping.

 

14) What is joint custody?

 

Joint custody means shared custody. There are two concepts in custody: legal and physical. Legal custody is the power to make decisions for a child such as religion, medical, educational, and extra curricular matters. When there is joint legal custody, these decisions should be made together. Physical custody refers to the physical presence of the child. Joint physical custody means that the child's time is split between the two parents. The parent with the child will make the ordinary, day to day decisions without consulting the other parent. In divorces, joint legal custody is the usual result. Usually, one parent has more parenting time (physical custody) with a child than the other parent.

 

 

15) Can I get a divorce if my spouse doesn't want the divorce?

 

Yes. Cooperation between spouses will make the divorce process easier and less expensive. Without cooperation, the divorce is a contested matter that is longer and more expensive. However, your spouse can't stop you from getting a divorce.

 


 16) Can I have an attorney represent me one day in court?

 

Massachusetts has adopted a limited appearance representation rule for lawyers (LAR) which is effective in most counties. Under this rule, clients can hire attorneys for limited matters such as one day in court, preparing and attending a pre-trial conference, taking depositions, or drafting documents. Only attorneys who have been trained under this rule may accept LAR clients. Attorney St.Louis has been trained under this rule and accepts clients on a limited appearance basis.

 

 

17) How long do I have to live in Massachusetts before I can file for divorce?

 

If the cause of the divorce occurred outside of Massachusetts, the plaintiff must reside in Massachusetts for at least one year prior to the filing of the action. If the cause of the divorce occurred within Massachusetts, at least one of the parties must be a Massachusetts resident

 


 

18) I was just served with a divorce complaint. Can I oppose the divorce?

 

As Massachusetts allows a 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 they can't live with you or don't love you. This grounds for divorce is frequently called "no-fault divorce." A fault grounds divorce can be contested but it will almost certainly be changed to a no-fault divorce before the case is over.

 

 

19) Is there a simplied divorce procedure allowed in Massachusetts?

 
 

Yes. If the parties agree on all issue, a simplified divorce procedure is available. An action for divorce based upon an irretrievable breakdown of the marriage may be commenced by filing a joint petition for divorce. The joint petition must be accompanied by a sworn affidavit alleging that the marriage has suffered an irretrievable breakdown along with a separation agreement. The parties can request a hearing date on the same day the papers are filed.

 


 

20) My divorce should be final by now, why hasn't the court sent me the final divorce decree?

 

The final divorce decree is called a Decree Absolute and may be purchased from the court. The divorce is final even if you don't have this document in your possession. If you want a copy of the Decree Absolute contact the court where you were divorced and purchase it. The fee is $20.00 for a certified copy plus one dollar per page for every page except the first.

 

 

21) What are "no fault" and "fault" divorces?

 

In a no-fault divorce, the parties have to prove that the marriage has broken down irretrievably or that the couple has irreconcilable differences. In other words, 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 grounds 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 and no-fault divorces.

 

 

22) Can I hire a divorce attorney to write documents for me?

 

This practice is called ghost writing and was prohibited under the Attorney's Code of Ethics. However, Massachusetts has adopted a limited appearance representation rule for lawyers (LAR) which allows ghost writing as long as the document reflects that it was drafted by an attorney. Under this rule, clients can hire attorneys to draft documents. Only attorneys who have been trained under this rule may accept LAR clients. Attorney Alan Pransky has been trained under this rule and accepts clients on a limited appearance basis. The limited appearance rule is not effective in all courts in Massachusetts.

 

 

23) Can one attorney represent both myself and my spouse?

 

No. There is a conflict of interest between divorcing spouses even when they cooperate in getting the divorce. A lawyer cannot represent both parties in a divorce because a lawyer owes a duty to his client and can't divide this duty between two clients. While one attorney may draft an agreement that is fair to both spouses, each spouse should have their own attorney review the agreement before it is presented to a Judge for approval.

 

 


 24) How do I stop my spouse from spending or transferring assets?

 

The easy is answer is to file a divorce and serve your spouse. Upon filing an action for divorce, an automatic financial restraining order issues. 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 and to pay their attorney. If they want to use assets for another purpose, they need the written consent of the spouse or an order of a Judge

 

 
 25) What are the grounds for divorce?

 

"Grounds" for divorce is the "reason" for divorce. The State will only alllow a divorce for a recognized reason as set forth by statute. The most common reason for divorce is "Irretrievable breakdown of the marriage." Irretrievable breakdown is also called "no-fault divorce." This means that you can get divorced if you no longer love your spouse. In addition, Massachusetts has fault grounds for divorce including:

 

  • Adultery;
  • Impotency;
  • Desertion for at least one year;
  • Addiction to drugs/alcohol;
  • .Cruel and abusive treatment;
  • Refusal to support spouse when able; and
  • Confinement in penal institution for 5 or more years

 

 

26)  What is the difference between a 1A and a 1B divorce?

 

 A 1A divorce is an uncontested divorce. It is typically begun by filing a joint petition for divorce along with other required documents and a signed and notarized divorce agreement. The Judgment of Divorce will enter 30 days from the date of the divorce hearing, and will be come final 90 days there after, for a total of 120 days during which the parties are not legally free to remarry. In order to obtain a divorce pursuant to MGL. c. 208, s. 1A, parties must be able to communicate and cooperate at least well enough to reach an agreement on the issues in the divorce. A 1B divorce is a contested divorce, begun when one (or sometimes both) parties file a complaint for divorce. Contested issues may include child custody and support, parenting time, alimony, division of assets, as well as other issues. A contested divorce is expected to be completed in approximately 14 months, although it can take more or even less time.



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Contact an Expert Divorce Attorney

 


At the Law Offices of Michael R. St. Louis, we are fully prepared to handle your divorce case. As a leading Boston divorce law firm, we can provide you with the direction and legal counsel you need in your divorce. Call our Law Offices today for your free consultation at 781-816-3950 or contact us online.

 
 

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