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Massachusetts Divorce Frequently Asked Questions

This list of frequently asked questions and answers on issues of separation and divorce has been developed by Divorce Headquarters in conjunction with our professional members in response to the numerous requests for information we have received from our site visitors.

The answers to the questions provided in this section are general in nature and are not intended to create an attorney-client relationship or to replace specific legal advice.


Divorce

Can I get a divorce if my spouse doesn't want it?

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

Can I hire an attorney to draft documents for me?

Can one attorney represent both me and my spouse?

Do I need to hire an attorney?

Does an uncontested divorce require a court hearing?

How do I stop my spouse from transferring assets?

How do you start a divorce?

How is property divided in a divorce?

How long do I have to live in Massachusetts prior to filing for divorce in Massachusetts?

How long will it take for my divorce to become final?

I currently cover my ex-spouse on my health insurance policy. I'm getting remarried, can I still cover my ex-spouse?

I don't like the provisions in my divorce decree. Can I change them?

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

I'm separated from my spouse, can I date?

Is a simplified divorce procedure allowed in Massachusetts?

Is same-sex divorce any different than regular divorce?

My divorce should be final by now. Why hasn't the court sent me a final divorce decree?

My spouse and I signed a separation agreement do I still need a divorce?

My spouse wants a divorce and has given me papers to sign. What happens if I don't sign the papers?

We were just married and I realize this was a mistake. Can I get the marriage annulled?

What are "fault divorce" and "no-fault divorce"?

What are temporary orders?

What are the terms used to identify the parties in a divorce proceeding?

What is "venue," and what is the proper venue for a divorce case or which court do I file a Massachusetts divorce?

What is a legal separation?

What is an uncontested divorce?

What is Mandatory Discovery?

What is meant by "grounds for divorce"?

What is the Limited Appearance Rule?

What will the Court do when I prove that my spouse cheated on me?

Who pays my legal fees?

The authors and creators and any and all persons or entities involved in any way in preparation of the website known as Divorce Headquarters and/or divorcehq.com disclaim all responsibility for the legal effects or consequences of the interpretation of the information provided. Individuals intending to use divorcehq.com as an information resource should seek advice from family law professionals and experts familiar with the laws of their state. This website is not intended to provide legal advice and should not be relied on for that purpose.


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THIS WEB SITE IS PROVIDED FOR INFORMATIONAL PURPOSES ONLY
Do not take any actions based upon the information contained within this web site without first consulting an attorney or an appropriate professional depending upon the content of the information.



Return Can I get alimony?
Alimony is determined by G.L c. 208, 34 which lists the factors a judge must consider in awarding alimony. There are approximately fourteen mandatory factors and four optional factors. Alimony is not appropriate in every case. Alimony may be appropriate in the following examples:
  • One spouse can't support themselves due to health or handicap issues.
  • The marriage was not short term and there is a significant difference in income between the spouses.
  • One spouse has excess income over their needs and the difference in net income between the spouses is very large.
  • Other cases not described here.
Alimony may also be appropriate as a way to reduce taxes when child support is awarded. Since alimony is deducted from income for taxes to the payor and included as income for taxes to the recipient, it may be advantageous to treat child support as alimony.

This answer supplied by: Alan J. Pransky of Alan J. Pransky, Attorney at Law     (781)329-2923  



Return Can men receive alimony?
Massachusetts divorce law is gender neutral. We have an Equal Rights Amendment that mandates that the courts treat people equally without bias based on gender. This means that in the correct circumstances, men can receive alimony. Generally, alimony is paid from the family bread winner to the spouse that was not the bread winner during the marriage. This means that if the wife was the major income earner during the marriage, she could pay the husband alimony. However, there are many factors that determine if alimony is appropriate in any particular case. Alimony is not automatically given in divorces.

This answer supplied by: Alan J. Pransky of Alan J. Pransky, Attorney at Law     (781)329-2923  



Return How will a Court determine how much alimony to award to a party?
There is no formula for alimony although some Judges may have their own approach. In Massachusetts alimony is based on consideration of the following factors:
  • The length of the marriage
  • Theconduct of the parties during the marriage
  • Theage, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties
  • Theopportunity of each for future acquisition of capital assets and income
  • Thecontribution of each of the parties in the acquisition, preservation or appreciation in value of their respective estates
  • Thecontribution of each of the parties as a homemaker to the family unit

This answer supplied by: Alan J. Pransky of Alan J. Pransky, Attorney at Law     (781)329-2923  



Return Can I suspend visitation because I'm not getting child support?
While some states allow a court to suspend visitation to enforce support payments, Massachusetts does not allow this.

This answer supplied by: Alan J. Pransky of Alan J. Pransky, Attorney at Law     (781)329-2923  



Return Does custody and visitation affect 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 a strict application of 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.

This answer supplied by: Alan J. Pransky of Alan J. Pransky, Attorney at Law     (781)329-2923  



Return How can you change the amount of child support you're paying?
The amount of child support you pay in the state of Massachusetts depends on the gross weekly income of both parents, the child support and insurance costs paid by each parent, the number of children covered by the order and any other support you are currently ordered to pay. Massachusetts also imposes a minimum support requirement on low income parents.

Once a child support order has been established, you can change the amount of support you pay by requesting a modification to the order. Your modification may be granted if:
  • Any of the factors used to calculate your support requirements have changed.
  • You and the child's other parent have agreed on a different amount of support.
  • The court finds that the current support amount is unfair or inappropriate under the current circumstances.
  • Your parenting time has changed significantly.
  • You have extreme, unavoidable personal expenses, such as healthcare costs.

source:http://www.mass.gov/courts/docs/child-support/2013-child-support-guidelines.pdf

This answer supplied by: Gabriel Cheong of Infinity Law Group     (617)273-5110  



Return I don't want to pay child support any more. Can I relinquish 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.

This answer supplied by: Alan J. Pransky of Alan J. Pransky, Attorney at Law     (781)329-2923  



Return Do I have to take a parenting course?
If you have children under 18 and are getting divorced in Massachusetts, you must take a parent education class. The course is not designed to teach basic parenting skills but is designed to help you understand the challenges of having parents in two households. Information on this class including a list of providers can be found at http://www.mass.gov/courts/courtsandjudges/courts/probateandfamilycourt/parenteducation.html.

This answer supplied by: Alan J. Pransky of Alan J. Pransky, Attorney at Law     (781)329-2923  



Return Does how much you make affect child custody?
The state of Massachusetts supports the right of both parents to spend time with their children, regardless of how much income they earn, and income on its own won't typically be used as a factor in determining the custody of your child. However, if your income makes it difficult for you to provide a safe, stable environment for your child, child custody orders may be affected. Massachusetts courts make custody decisions based on the best interests of the child, so if the court determines your home to be unsafe, inappropriate, unstable or otherwise harmful to the child, sole physical custody may be awarded to the child's other parent.
source: http://www.mass.gov/courts/case-legal-res/law-lib/laws-by-subj/about/custody.html

This answer supplied by: Gabriel Cheong of Infinity Law Group     (617)273-5110  



Return I have custody of my children and I want to move to another state. Can I just take the 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.

This answer supplied by: Alan J. Pransky of Alan J. Pransky, Attorney at Law     (781)329-2923  



Return My child wants to live with my spouse. Will the court decide custody based on my 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.

This answer supplied by: Alan J. Pransky of Alan J. Pransky, Attorney at Law     (781)329-2923  



Return My spouse and I don't agree on child custody and visitation issues. How will the court decide these issues?
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.

This answer supplied by: Alan J. Pransky of Alan J. Pransky, Attorney at Law     (781)329-2923  



Return My spouse and I 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.

This answer supplied by: Alan J. Pransky of Alan J. Pransky, Attorney at Law     (781)329-2923  



Return What happens when a custody or visitation 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.

This answer supplied by: Alan J. Pransky of Alan J. Pransky, Attorney at Law     (781)329-2923  



Return 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.

This answer supplied by: Alan J. Pransky of Alan J. Pransky, Attorney at Law     (781)329-2923  



Return Can I get a divorce if my spouse doesn't want it?
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.

This answer supplied by: Alan J. Pransky of Alan J. Pransky, Attorney at Law     (781)329-2923  



Return Can I have an attorney represent me for 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 Alan Pransky has been trained under this rule and accepts clients on a limited appearance basis.

This answer supplied by: Alan J. Pransky of Alan J. Pransky, Attorney at Law     (781)329-2923  



Return Can I hire an attorney to draft 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.

This answer supplied by: Alan J. Pransky of Alan J. Pransky, Attorney at Law     (781)329-2923  



Return Can one attorney represent both me 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.

This answer supplied by: Alan J. Pransky of Alan J. Pransky, Attorney at Law     (781)329-2923  



Return Do I need to hire an attorney?
You don't have to hire an attorney as you have the right to represent yourself. You could, however, be putting yourself at a serious disadvantage. Unless you and your spouse have no significant assets, children or unsettled issues, the divorce can become very complicated. An experienced family law attorney can be of great help during litigation.

This answer supplied by: Alan J. Pransky of Alan J. Pransky, Attorney at Law     (781)329-2923  



Return Does an uncontested divorce require a court hearing?
Yes, there is a court hearing involved in an uncontested divorce. The state is considered a party to every marriage and must participate in every divorce. The state is represented by a Judge who must find that the settlement is fair and reasonable to all parties and that children are adequately protected. In addition, the Judge must protect the State in the event that one party receives public assistance and ensure that all parties are covered by insurance. In most cases, an uncontested divorce hearing is quick and routine.

This answer supplied by: Alan J. Pransky of Alan J. Pransky, Attorney at Law     (781)329-2923  



Return How do I stop my spouse from 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

This answer supplied by: Alan J. Pransky of Alan J. Pransky, Attorney at Law     (781)329-2923  



Return How do you start a divorce?
If the divorce is uncontested, the two parties file a joint petition for divorce with a separation agreement and an affidavit of irretrievable breakdown of marriage. The separation agreement must address all aspects of the divorce. 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 will be provided by the court when you file the divorce. There is a filing fee for both types of divorce that can be waived if the filing party is indigent.

This answer supplied by: Alan J. Pransky of Alan J. Pransky, Attorney at Law     (781)329-2923  



Return How is property divided in a divorce?
Massachusetts allocates property between spouses based on an equitable division of property. This means that the court will consider the following factors in allocating property:
  • The length of the marriage
  • The conduct of the parties during the marriage
  • The age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties
  • The opportunity of each for future acquisition of capital assets and income
  • The contribution of each of the parties in the acquisition, preservation or appreciation in value of their respective estates
  • The contribution of each of the parties as a homemaker to the family unit.
Equitable division does not mean an equal division of property although an equal division of property is common. Equitable division means that the property will be divided fairly.

This answer supplied by: Alan J. Pransky of Alan J. Pransky, Attorney at Law     (781)329-2923  



Return How long do I have to live in Massachusetts prior to filing for divorce in Massachusetts?
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

This answer supplied by: Alan J. Pransky of Alan J. Pransky, Attorney at Law     (781)329-2923  



Return How long will it take for my divorce to become final?
A divorce will be final ninety days after the Judge issues a divorce decree which is called a decree nisi. After this waiting period, the Court will issue a final divorce decree called a decree absolute. The decree nisi issues when the Judge grants the divorce. If the parties have an uncontested divorce with a separation agreement, the Judge must first approve the agreement which then has an additional thirty day waiting period. In these cases, the divorce generally becomes final 120 days after the parties appear before the Judge. However, this may be delayed a few more days as the waiting periods start when the Judge signs the decree and not when the parties appear before the Judge.
The waiting parties allow the parties to file an appeal (only in contested divorces), reconcile, or notify the court if they believe the other party fraudulently hid assets or income.

This answer supplied by: Alan J. Pransky of Alan J. Pransky, Attorney at Law     (781)329-2923  



Return I currently cover my ex-spouse on my health insurance policy. I'm getting remarried, can I still cover my ex-spouse?
An ex-spouse can be covered under your health insurance as long as neither one remarries. Upon remarriage of either party, the ex-spouse is no longer eligible for coverage. They can be covered by a rider to your policy or by an individual plan through your employer. For more information see G.L.c. 32A, § 11A.

This answer supplied by: Alan J. Pransky of Alan J. Pransky, Attorney at Law     (781)329-2923  



Return I don't like the provisions in my divorce decree. Can I change them?
Other than issues relating to children, Post-decree modification usually does not occur unless there is a provision in the separation agreement to do so or if the other party committed fraud, used undue influence, or made a misrepresentation. A modification can occur to correct mutual mistakes. Issues relating to children including visitation and child support may be modified based when a material change in circumstances occurs.

This answer supplied by: Alan J. Pransky of Alan J. Pransky, Attorney at Law     (781)329-2923  



Return 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.

This answer supplied by: Alan J. Pransky of Alan J. Pransky, Attorney at Law     (781)329-2923  



Return I'm separated from my spouse, can I date?
Adultery is still a crime in Massachusetts although it is extremely rare to find a prosecution. Many people start to date before they separate from their spouse and never face a criminal prosecution. It may be wiser to consider the effect dating will have on your divorce. If your spouse knows about your dating, it may make a divorce more difficult and expensive. If you are discreet about other relationships, there may be no adverse effects from dating before you are divorced. If your spouse introduces evidence of your dating at a divorce trial, it is unlikely that a judge will pay much attention to your dating as long as it doesn't effect your children, income, expenses, or assets.
If you shower your dates with expensive gifts, you can expect an adverse reaction from a judge as such action is likely to be viewed as a violation of the automatic financial restraining order.

This answer supplied by: Alan J. Pransky of Alan J. Pransky, Attorney at Law     (781)329-2923  



Return Is a simplified 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.

This answer supplied by: Alan J. Pransky of Alan J. Pransky, Attorney at Law     (781)329-2923  



Return Is same-sex divorce any different than regular divorce?
Federal law now requires all states, including Massachusetts, to allow same-sex marriage. Same-sex marriages are now afforded all of the rights and privileges available to heterosexual married couples, including the ability to divorce. During a same-sex divorce, couples must resolve all of the same issues that would be explored in heterosexual divorce, including the division of property, division of debts, child custody, child support and spousal support. Like any other married couple, same-sex spouses can choose to settle these issues on their own through mediation, or the case can go to court. If the case goes to court, all of the same guidelines that apply to heterosexual married couples will be used to settle the issues of the same-sex couple.

This answer supplied by: Gabriel Cheong of Infinity Law Group     (617)273-5110  



Return My divorce should be final by now. Why hasn't the court sent me a 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.

This answer supplied by: Alan J. Pransky of Alan J. Pransky, Attorney at Law     (781)329-2923  



Return My spouse and I signed a separation agreement do I still need a divorce?
Yes. A separation agreement is not enforceable without approval by a Judge. The State is considered to be a party to the marriage and must approve the terms of a divorce. The State is represented by a Judge who must determine that the separation agreement is fair and reasonable before divorce can be final.

This answer supplied by: Alan J. Pransky of Alan J. Pransky, Attorney at Law     (781)329-2923  



Return My spouse wants a divorce and has given me papers to sign. What happens if I don't sign the papers?
These papers probably include a separation agreement which will resolve all issues in the divorce. Signing these papers will mean that you agree with all terms. If you don't sign the papers, the divorce will be considered contested. The issues may be resolved by a judge instead of by agreement of the spouses. Before signing these papers, you should consult an attorney to understand the terms of the proposed settlement.

This answer supplied by: Alan J. Pransky of Alan J. Pransky, Attorney at Law     (781)329-2923  



Return We were just married and I realize this was a mistake. Can I get the marriage annulled?
Annulment is a declaration that the marriage never existed. If there was an impediment to the marriage such as a party was still married to a previous spouse then the marriage never occurred. An unwise marriage is still a marriage and needs to be terminated by a divorce. Fraud, undue influence, or legal impediments are possible grounds for annulment.

This answer supplied by: Alan J. Pransky of Alan J. Pransky, Attorney at Law     (781)329-2923  



Return What are "fault divorce" and "no-fault divorce"?
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.

This answer supplied by: Alan J. Pransky of Alan J. Pransky, Attorney at Law     (781)329-2923  



Return What are temporary orders?
Temporary orders are orders issued by a Court before the 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 issues that can't wait until the final judgment. The following issues are typically addressed in temporary orders:
  • Should one party vacate the house?
  • Which parent will be primarily responsible for the custody of the children?
  • How often will the other parent visit the children?
  • What money is paid from one spouse to the other for child support or spousal support?
  • Who gets to use the individual assets like cars, furniture, etc.
Many other matters can be addressed in temporary orders as well.

This answer supplied by: Alan J. Pransky of Alan J. Pransky, Attorney at Law     (781)329-2923  



Return What are the terms used to identify the parties in a divorce proceeding?
The person who files a contested divorce is known as the Plaintiff. The other party to the divorce is called the Defendant. If a joint complaint is filed for a no fault divorce, both parties are referred to as Co-Petitioners.

This answer supplied by: Alan J. Pransky of Alan J. Pransky, Attorney at Law     (781)329-2923  



Return What is "venue," and what is the proper venue for a divorce case or which court do I file a Massachusetts divorce?
"Venue" refers to the proper local court to file a divorce case. In Massachusetts, divorces are filed in the Probate and Family Court. The proper venue for a divorce action is the county of the parties' last residence as husband and wife. If neither spouse still lives in the county of the last marital domicile, the divorce may be filed in the county where either party resides.

This answer supplied by: Alan J. Pransky of Alan J. Pransky, Attorney at Law     (781)329-2923  



Return What is a legal separation?
A separation occurs when a couple voluntarily lives apart. A legal separation is a separation approved by a Judge. Such approval requires a Judge to consider support, child custody, health insurance, and use of property. Massachusetts does not have a "legal separation." Parties can obtain temporary orders during a divorce action or they can obtain a decree of separate support which most people consider 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.

This answer supplied by: Alan J. Pransky of Alan J. Pransky, Attorney at Law     (781)329-2923  



Return What is an uncontested divorce?
An uncontested divorce is a divorce in which both parties have agreed on all issues and put the agreement in writing for the Judge to approve. If there is one issue that is not agreed upon, then the divorce is still contested. If the parties have agreed on all issues before the divorce action is filed, then they should file a joint petition for divorce. Otherwise, the divorce will start as a contested divorce and then change to uncontested when the parties reach an agreement.

This answer supplied by: Alan J. Pransky of Alan J. Pransky, Attorney at Law     (781)329-2923  



Return What is Mandatory Discovery?
In a divorce, within forty-five days after service of the complaint and summons on the Defendant, both parties must provide to the other three years of records (tax returns, bank statements, investments statements, insurance information, etc.) These documents must be produced even if the other side doesn't request them. If you don't have these documents, you must get them. Failure to provide these records can result in court sanctions. The rule explaining this may be found at http://www.lawlib.state.ma.us/source/mass/rules/probate/supp410.html. This rule does not prevent parties from engaging in additional discovery.

This answer supplied by: Alan J. Pransky of Alan J. Pransky, Attorney at Law     (781)329-2923  



Return What is meant by "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

This answer supplied by: Alan J. Pransky of Alan J. Pransky, Attorney at Law     (781)329-2923  



Return What is the Limited Appearance Rule?
Traditionally, once a lawyer accepted a litigation case, the lawyer did everything. The client never went to court without a lawyer and the lawyer drafted every document. Of course, attorney fees relate to the amount of work performed by the lawyer. The more work the lawyer did, the higher the fees. Massachusetts has adopted a rule which allows lawyers to represent clients for individual days, actions, or to draft individual forms. While this rule is not effective in all courts in Massachusetts, it is available in most probate courts. 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.

This answer supplied by: Alan J. Pransky of Alan J. Pransky, Attorney at Law     (781)329-2923  



Return What will the Court do when I prove that my spouse cheated on me?
Surprisingly, the Court usually does very little when adultery is proved. Massachusetts is a no-fault divorce state and while the Court will consider wrongful conduct, it usually doesn't make much difference in a divorce. This is because the bad conduct is part of the factor "conduct of the parties during the marriage." It is hard to imagine a marriage where the only conduct by one party was bad conduct. Usually every person has good conduct and bad conduct during a marriage. The Judge must consider both good and bad conduct. As a result, it is rare that a person has behaved so badly during a marriage that it has a significant affect on the outcome.

This answer supplied by: Alan J. Pransky of Alan J. Pransky, Attorney at Law     (781)329-2923  



Return Who pays my legal fees?
Usually, each party pays his or her own legal fees and expenses. If your financial circumstances are such that your spouse has sole control of the finances, and you have no access to funds with which you can pay legal fees, you have a right to file a motion with the Court requesting that your spouse release to you a portion of the funds with which you can pay your legal fees during the divorce proceeding. At the end of the divorce, attorney fees may be treated as a liability incurred during the marriage and allocated between the parties as part of the property division. In addition, the court can order attorney fees to be paid by a party when the court believes that a party has behaved improperly such as failing to obey a court order (contempt of court).

This answer supplied by: Alan J. Pransky of Alan J. Pransky, Attorney at Law     (781)329-2923  



Return After divorce, will I be entitled to some portion of my husband's pension?
Pensions are not subject to division for the value owned prior to marriage but are subject to division for the value that accrued during the marriage. If the husband had a $25,000.00 pension or retirement account at time of marriage and it has increased to $100,000.00 at the time of divorce, then the $75,000.00 increase is subject to division. Pensions are generally divided by an order of the Court called a Qualified Domestic Relations Order or a QDRO.

This answer supplied by: Alan J. Pransky of Alan J. Pransky, Attorney at Law     (781)329-2923  



Return Do I have to fill out a financial statement?
Every person who appears in a divorce or support proceeding that involves money or finances must fill out a financial statement. If your income is under $75,000.00 per year you should fill out the short form. If your income is $75,000.00 or greater, you should fill out the long form. If you complete the financial statement before you go to court, you may be able to get out of court faster. In addition, you are likely to be more accurate with your numbers if you complete the form in advance. Financial Statement Forms including schedules for self employment and rental income and instructions for filling out the forms may be found at http://www.mass.gov/courts/courtsandjudges/courts/probateandfamilycourt/forms.html#financial.

This answer supplied by: Alan J. Pransky of Alan J. Pransky, Attorney at Law     (781)329-2923  



Return How do I pay my bills while the divorce is pending in court?
The court may order that one spouse support the other while the divorce is pending in court. This support is called temporary alimony.

This answer supplied by: Alan J. Pransky of Alan J. Pransky, Attorney at Law     (781)329-2923  



Return I have been separated from my spouse for years. Will the property be valued as of the date of separation?
In Massachusetts, property is almost always valued as of the date of divorce and not the date of separation. Marriage is viewed as a partnership that can only be terminated by a Court. Therefore, the partnership continues after separation and both parties will share in any increase (or decrease) in assets from date of separation to date of divorce.

This answer supplied by: Alan J. Pransky of Alan J. Pransky, Attorney at Law     (781)329-2923  



Return I inherited property from my parents. What happens to this property in a divorce?
Gifts and inheritances are assets that are subject to equitable division. A judge can assign all or part of the assets to your spouse as part of the overall division of property. If there are other assets that are adequate to provide for the needs of the parties, gifts and inheritances may be treated as separate property. This is particularly likely to happen if the assets were not commingled with other assets and were not used for the benefit of the marriage.

This answer supplied by: Alan J. Pransky of Alan J. Pransky, Attorney at Law     (781)329-2923  



Return My ex-spouse filed for bankruptcy, what do I do?
There are two aspects to this question: property division and child support/alimony payments.
  • Any property obligations that are not completed may be discharged in bankruptcy. This means that if property is to be transferred from your ex-spouse to you or money is to be transferred as part of the property division, then this obligation may be discharged and you may not get the property. You should consult a bankruptcy attorney immediately to determine if your rights are affected and what you can do about it.
  • Alimony and child support are generally exempt from discharge in bankruptcy as they are considered "domestic support obligations." If they are domestic support obligations under bankruptcy law, then they will still be obligations after the bankruptcy is over. You should file a document with the bankruptcy court to establish any arrears owed for the DSO and have the bankruptcy trustee collect the money for you as this is a priority debt in bankruptcy. However, the trustee will only collect the money if the debtor's estate has assets available to pay creditors. If this is a no-asset bankruptcy, the trustee won't be able to help you..
Please note that bankruptcy court determines if the debt is a domestic support obligation or property division and the state Probate Court has no power to determine this for a bankruptcy. Therefore, you should consult a bankruptcy attorney to determine your specific rights.

This answer supplied by: Alan J. Pransky of Alan J. Pransky, Attorney at Law     (781)329-2923  



Return What happens to debt and other liabilities in a divorce?
Debts are treated as "negative" assets and are divided as part of an equitable division of property. This means that the court will consider the same factors in allocating debts as it will use in allocating property. Any liability that is secured by an asset usually becomes the obligation of the person who receives the property. An example is that a mortgage is secured by real estate and usually becomes the obligation of the person who lives in the real estate. An auto loan usually becomes the obligation of the person who has use of the car. Credit card debt is usually not secured and is part of the general division of assets.

This answer supplied by: Alan J. Pransky of Alan J. Pransky, Attorney at Law     (781)329-2923  



Return What happens to retirement funds in a divorce?
Retirement funds are placed into two categories: acquired before the marriage or acquired during the marriage. Retirement funds that were owned at the time of divorce are generally not subject to division in a divorce. However, growth of an account owned prior to divorce is treated as acquired during the marriage. Retirement funds acquired during the marriage are subject to division as any other asset of the marriage is treated. As an example, assuming the husband has a 401k account that he owned prior to marriage. At the time of marriage, the value was $100,000.00. During the marriage, the husband contributed an additional $100,000.00. The account also increased due to the market and interest by an additional $50,000.00 for a total value of $250,000.00. Under these circumstances, $100,000.00 of the account will not be subject to division and the additional $150,000.00 is subject to division as a marital asset.
Retirement funds may require a special court order to divide the asset pursuant to a divorce. If so, the court will issue a Qualified Domestic Relations Order which is commonly called a QDRO to divide the asset. The QDRO must be prepared by the parties and the party that controls the retirement funds may need to be consulted.

This answer supplied by: Alan J. Pransky of Alan J. Pransky, Attorney at Law     (781)329-2923  



Return What is the automatic financial restraining order?
When the Plaintiff files the divorce and when the Defendant is served with the complaint and summons, each party is subject to an automatic financial restraining order. This order prohibits each party from transferring money except to pay usual and customary living and business expenses or to pay their attorney. It also prohibits parties from incurring debt in their spouse's name, or changing life or health insurance policies. Violation of this order may be punished as a contempt of court.

This answer supplied by: Alan J. Pransky of Alan J. Pransky, Attorney at Law     (781)329-2923  



Return Do we each have a mediator?
Generally there is one mediator. Some parties engage two mediators to serve as co-mediators. Sometimes one of these is an attorney and the other is a mental health professional. Some parties have co-mediators that are a man and a woman.

This answer supplied by: Laurie Israel of Israel, Van Kooy & Days, LLC     (617)277-3774  



Return Does mediation mean I won't have to go to court?
If the mediation is successful and results in a written agreement, the agreement can be submitted to the Court for approval and for the Court to enter an order. In a divorce in Massachusetts, the parties will need to attend a hearing on the divorce in which the agreement is presented, and the judge must make a finding that it is fair and reasonable under the circumstances. In some family mediations (such as family business, elder law, marital mediation), there can be no court involvement at all, and the written agreement (if there is one produced by the mediation) is a legally binding contract.

This answer supplied by: Laurie Israel of Israel, Van Kooy & Days, LLC     (617)277-3774  



Return How are family mediators trained?
Family mediators have taken between 30 and 40 hours of basic mediation training. Most family mediators have also taken advanced training, and special training in divorce mediation. Many family mediators are licensed attorneys who also practice law. Other family mediators are mental health and other trained professionals. Family mediators may, depending on their interest and backgrounds, concentrate in special areas, such as children, or financial issues.

This answer supplied by: Laurie Israel of Israel, Van Kooy & Days, LLC     (617)277-3774  



Return How can we find and choose a family mediator.
ou can find a mediator on www.mcfm.org and read about their background and experience in their profiles. If you are in a different state, an internet search will be a good way to find mediators who have created websites and have web presence. Recommendations from friends, relatives and co-workers are also good ways to find a family mediator.

This answer supplied by: Laurie Israel of Israel, Van Kooy & Days, LLC     (617)277-3774  



Return How do I know the mediator will be fair to me?
In order for mediation to work, the mediator must be neutral and unbiased. Mediators are not the decision-makers-the parties are. It is very difficult for parties to reconcile divergent points of views, especially when they are in a dispute that could lead to litigation. Mediators are trained to see both points of views and generally report that they see each party's view as reasonable. What mediation can do is to help reconcile these divergent views with a plan of action acceptable to both parties. Since the parties determine the final result, the mediator's job is to help the parties be fair to each other.

This answer supplied by: Laurie Israel of Israel, Van Kooy & Days, LLC     (617)277-3774  



Return How Does Divorce Mediation Work?
In divorce mediation, the couple sits down together in a cooperative spirit instead of attempting to one-up each other in an adversarial contest. To their great benefit, the couple reduces the cost and bitterness of divorce. Following mediation ground-rules agreed upon at the outset, the couple uses the mediation process to reach agreement on issues requiring resolution for their divorce. The mediator does not judge the couple or act as a therapist. The mediator encourages the couple to engage in balanced, forward-looking negotiation and to achieve compromise that is fair and practical. An experienced, qualified mediator knows what issues need to be covered in the couple's written agreement and guides each couple accordingly.

This answer supplied by: Marion Lee Wasserman, Esquire of Reach Accord Law and Mediation Services     (781)449-4815  



Return How is mediation different than litigation?
When parties resolve their disputes by litigation, their contacts are generally indirect -- through attorneys and the rules of the court system. Because of this, litigation is an inefficient way to resolve disputes. With court appearances, including motions, pretrial conferences, and possibly a full trial, the litigation process can be very expensive. Litigation almost invariably causes hard feelings to develop and solidify, deeply affecting not just the parties, but also the children, and other parties, such as in-laws.

Mediation is a more direct process, where the participants are in control of their own destiny. A series of face-to-face meetings led by the mediator can produce agreements. Because the parties will not be pushed into win/lose debate or bargaining, solutions can be more creative, and fulfill more of each participant's needs and desires.

This answer supplied by: Laurie Israel of Israel, Van Kooy & Days, LLC     (617)277-3774  



Return How long does mediation take, and how much does it cost?
Most mediators have an hourly charge for their services. Time is charged for mediation sessions, and also the work that is done between sessions, such as writing agreements or Memorandums of Understanding. The complexity of the case and the personality and history of the participants will cause a mediation to take more or less hours. Divorce mediations are typically completed in 3 to 6 two-hour mediation sessions, plus additional mediator work outside the sessions.

This answer supplied by: Laurie Israel of Israel, Van Kooy & Days, LLC     (617)277-3774  



Return If I choose mediation, will I be giving up my rights?
Mediators are trained in methods that result in "leveling of the playing field". If a party is clearly being coercive, a mediator can work through the imbalance so that each party's views are heard and acknowledged. It is helpful for parties to have a basic knowledge of their rights and obligations prior to, and during the mediation. Internet searches and consultations with reviewing attorneys can help educate the client. The mediation is generally conducted "in the shadow of the law", with knowing and intentional waivers as requested by the parties.

This answer supplied by: Laurie Israel of Israel, Van Kooy & Days, LLC     (617)277-3774  



Return Is Family Mediation Confidential?
Yes. Your Family Mediator will keep all the information discussed in the family mediation sessions confidential. In litigation, everything becomes part of the public record, even personal matters that the parties would wish to keep private. This is one of the big differences between mediation and litigation. Mediation is considered settlement negotiations.

Most mediations end successfully, without litigation. However, in the rare event that the mediation ends and litigation takes place, a party cannot force a mediator to reveal his or her file or testify in a the divorce case, if the mediator meets certain qualifications established by Massachusetts statute (which most of MCFM's members do).

This answer supplied by: Laurie Israel of Israel, Van Kooy & Days, LLC     (617)277-3774  



Return Is mediation legally binding?
Mediation is a completely voluntary process. Any agreements made are not binding, unless the parties wish so make them so. Any party can leave the mediation if he or she feels it is not working for that party. If the parties enter into a written agreement that has been developed during the mediation, that written agreement is likely to be a binding contract. In divorce mediation, often the parties enter into a Separation Agreement, which, if approved by the Court, becomes the legally binding agreement relating to their divorce.

This answer supplied by: Laurie Israel of Israel, Van Kooy & Days, LLC     (617)277-3774  



Return Should the parties to a divorce mediation keep talking between sessions?
Participants in the divorce mediation process often wonder ... should they keep the discussion of issues going between sessions ... or is it advisable to call a halt to outside discussion? The answer is: it depends. Most often, the parties to the mediation are well-guided by their own instincts in this area. Parties uncertain about the wisdom of outside communication, or the limits to set, will find guidelines evolving as the mediation proceeds, and, in any event, can raise the subject in mediation. If the parties want to communicate constructively between sessions, their mediator will encourage them to go ahead and try. But for divorcing couples with an especially difficult relationship, the mediator may discourage outside discussion of the issues -- between some sessions, at least.

This answer supplied by: Marion Lee Wasserman, Esquire of Reach Accord Law and Mediation Services     (781)449-4815  



Return What are the alternatives to family mediation?
Aside from mediation, there is a great range of methods to resolve family disputes. Parties may wish to negotiate directly or with lawyers. They may make use of Collaborative Practice (also known as Collaborative Law), in which there is a series of face-to-face meetings with the parties and their collaboratively trained attorneys and other Collaborative professionals. In Collaborative Practice, the participants have pledged not to embark on litigation with these lawyers. This creates a safe haven where communication can be free and open, and issues resolved.

Where there are disputes about legal issues, case evaluation or conciliation can be helpful. Parties and their lawyers submit a set of agreed facts to a case evaluator (usually a retired judge or an experienced attorney), who renders a "finding" as to the issue in dispute.

If the matter is not an issue relating to children or spousal support, arbitration is an out-of court method for resolving disputes. The parties choose an arbitrator, who functions as a judge. The parties can choose whether the arbitrator's decision is final or not.

Finally, litigation is an option for disputing parties. It is now generally considered the least attractive alternative, due to its cost (emotional and monetary) but is necessary in some cases.

This answer supplied by: Laurie Israel of Israel, Van Kooy & Days, LLC     (617)277-3774  



Return What areas do family mediators work in?
Most of the family mediation cases are in the areas of divorce and post-divorce disputes. However, mediators are also active in other areas affecting families. In elder mediation, issues involving family participation in care of an elder can be addressed. Mediation is effective in resolving estate planning issues involving elders and the younger generation or second marriages.

Couples who live together may wish to enter into a mediated cohabitation agreement. Mediation is also a very effective way to negotiate prenuptial and postnuptial agreements between married parties.

A relatively new use of mediation is marital mediation, also known as marriage mediation and mediation to stay married. In marital mediation, parties use mediation and standard dispute resolution techniques to solve problems that are derailing their marriage.

Mediation is also an effective dispute resolution method for probate disputes, such as will contests and beneficiary disputes. And family mediation can be used to resolve problems that develop in family businesses.

This answer supplied by: Laurie Israel of Israel, Van Kooy & Days, LLC     (617)277-3774  



Return What is "marital mediation"?
Mediation is sometimes entered into by a married couple with the express intention of reducing conflict in their marriage. This type of mediation is often referred to as "marital mediation." Marital mediation is different from psychological counseling and is not a substitute for counseling. Marital mediation, like other mediation, has a practical, agreement-oriented and detail-oriented focus. In marital mediation, once a couple identifies specific areas of conflict to work on, they can use the mediation process to find points of agreement and negotiate conflict-reducing resolutions. Throughout the process of marital mediation, the couple will be developing and practicing cooperative, respectful, constructive ways of communicating and reaching accord

This answer supplied by: Marion Lee Wasserman, Esquire of Reach Accord Law and Mediation Services     (781)449-4815  



Return What is family mediation?
Family mediation is a process of dispute resolution that relies on the parties rather than on the Courts and litigation for family decision-making. It entails a series of meetings with a trained mediator who is a neutral facilitator for the family members in dispute. Mainly applied in the area of divorce and post-divorce matters, it also is used for other family disputes, such as elder and business issues.

This answer supplied by: Laurie Israel of Israel, Van Kooy & Days, LLC     (617)277-3774  



Return What is the mediation process?
The mediator promotes and facilitates discussion that allows the clients to exchange differing views, ask questions, discuss difficult topics and find solutions. Unlike litigation, it involves face-to-face meetings between the parties. Because the mediator is trained in assisting productive communication, the discussions often lead to resolution without the need for court decision-making. Mediation is done in a series of meetings, usually about 2 hours in length during which the mediator collects background information about the parties and the dispute(s). The parties are guided in what information and documents they need to provide so informed decisions can be made and the parties can work through the issues with the assistance of the mediator. The mediator drafts either an Agreement (suitable for presentation to a Court or to act as a contract between the parties) or a Memorandum of Understanding between the parties.

This answer supplied by: Laurie Israel of Israel, Van Kooy & Days, LLC     (617)277-3774  



Return What is the role of attorneys in family mediation.
A mediator (even if an attorney) does not represent either or both of the parties, but rather functions as a neutral facilitator. Mediators can provide legal information, but cannot give legal advice.

Mediators generally recommend that each party consult with a reviewing attorney in order to review any agreements arising from the mediator on that party's behalf. "Mediation friendly" reviewing attorneys understand the value of mediation for their clients, and can provide useful input to their client and to the mediator. The cost of mediation, even using reviewing attorneys, is generally much lower than the alternatives.

This answer supplied by: Laurie Israel of Israel, Van Kooy & Days, LLC     (617)277-3774  



Return Will the Mediator Answer Financial Questions?
Although the mediator is not acting as an accountant or financial advisor, the mediator should be knowledgeable about tax and financial issues that arise in connection with divorce. Ms. Wasserman has the knowledge and experience to answer many questions in these areas and also provide appropriate referrals to other professionals, as specific issues arise that require outside expertise. Such professionals may include accountants, business or real estate appraisers, pension actuaries or financial advisors. One advantage of the mediation process is that the couple uses outside professionals on a limited, as-needed basis, in order to gain specific information or advice contributing to positive negotiation -- a major departure from the costly, inefficient use of professionals as adversarial experts in traditional divorce contests.

This answer supplied by: Marion Lee Wasserman, Esquire of Reach Accord Law and Mediation Services     (781)449-4815  



Return Will the Mediator Really Be Neutral?
Whoever the mediating parties are - whether a divorcing couple, siblings with an estate conflict or family members dissolving a business - each party to the mediation will have an opportunity to explain his or her individual perspective. It is part of mediator's role to allow time for this, to listen attentively to each party and to help the parties listen to each other. The mediator should have training on the subject of neutrality, including gender neutrality, and knows how essential it not to judge the parties or choose sides. The mediator should appreciate the emotional and financial complexities of your situation and will use the mediation process to gain an understanding based on real issues, not surface impressions.

This answer supplied by: Marion Lee Wasserman, Esquire of Reach Accord Law and Mediation Services     (781)449-4815  



Return I'm getting divorced, can I introduce my dates to my children?
As a general rule, you should avoid introducing dates and potential romantic interests to your children until the divorce is allowed by a Judge and your new relationship has the potential to be long term. Introducing children to a date has the potential to cause harm to the children. Children usually have difficulty dealing with their parents' divorce. Introducing third parties makes the transition more difficult for the children. The situation becomes more difficult if there are a series of short term dates that are introduced. While a parent has the right to maintain a social life, there is usually no need to involve the children. If the children are introduced to a date, the children will almost certainly relate this to your spouse. This is likely to cause an adverse reaction from the spouse that may make the divorce more difficult and expensive.

This answer supplied by: Alan J. Pransky of Alan J. Pransky, Attorney at Law     (781)329-2923  



Return My spouse and I have been having difficulties. Can we sign a post-nuptial agreement to try to save the marriage?
A post-nuptial agreement which is created to try to save the marriage but sets forth terms of alimony and property division in the event of a divorce may be valid and enforceable in Massachusetts. The agreement will be carefully scrutinized by the court and will only be found valid if the court finds that it is fair and reasonable after considering, at a minimum, whether:
  • Each party had an opportunity to obtain separate legal counsel of each party's own choosing;
  • There was fraud or coercion in obtaining the agreement;
  • Ell assets were fully disclosed by both parties before the agreement was executed;
  • Each spouse knowingly and explicitly agreed in writing to waive the right to a judicial equitable division of assets and all marital rights in the event of a divorce;
  • The terms of the agreement were fair and reasonable at the time of execution;
  • The terms of the agreement are fair and reasonable at the time of divorce.

This answer supplied by: Alan J. Pransky of Alan J. Pransky, Attorney at Law     (781)329-2923  



Return My spouse and I signed a prenuptial agreement. Is it valid?
Most prenuptial agreements will enforced as valid in Massachusetts. If there was full financial disclosure and the agreement is free of fraud and coercion, it will probably be recognized and enforced by a Court. The agreement can't contract away rights of children but the parties can contract away the rights of adults. Generally, child custody and support can't be controlled by a prenuptial agreement. Property division and alimony can be addressed in a prenuptial agreement.

This answer supplied by: Alan J. Pransky of Alan J. Pransky, Attorney at Law     (781)329-2923