Divorce Basics

The information provided in this article is not, nor is it intended to be legal advice. Every case is unique. Results are never guaranteed, readers of this article should consult with an experienced attorney to answer and advice as to their specific situation.

This memorandum is intended as a general overview and highlight, of some the issues typically discussed at an initial consultation with a Massachusetts Divorce Lawyer or Family Law Attorney. I realize that you are being confronted with a vast amount of new and unfamiliar information in a very short period of time. Consequently, you may feel a bit overwhelmed with terms such as "fault," "no fault," "Child Support Guidelines" and "joint custody" buzzing randomly in your head. Understand that this reaction is perfectly normal and that the following information is intended to help overcome those feelings. After all, knowledge is the best way to overcome fear.

Also, the more familiar and comfortable you are with the procedures and legal concepts of the divorce process, the more able you are to work effectively on your own behalf with your attorney. Divorce and separation are difficult enough - to thread your way through a legal system you do not understand adds unnecessary anxiety to an already stressful situation. Understand, however, that this sheet is not intended to take the place of an attorney. It is designed to be used together with the advice provided to you in light of your particular circumstances. Also, consider that laws and statutes are ever evolving, be sure to speak to one of the family law lawyers at the Roncone Law Offices, P.C.

"What's going to happen to me?" In one form or another, this is the bottom-line question most people ask in a divorce proceeding. From a legal perspective, whether the divorce is based on fault grounds or no fault grounds (referred to as "Irretrievable Breakdown"), three issues must be resolved in order to complete the divorce: (1) Alimony and Child Support, (2) Division of Property (Assets and Debts) and (3) Custody and Visitation/Parenting Time. The best I can do in predicting to you "what's going to happen" is to advise you (in summary form) of the law on these issues and share with you what I have observed in other cases. This brief outline is not a prediction or guarantee of what will happen in your case nor can we include or express an absolute and thorough recitation of the law and the many exceptions or contingencies which may apply to the following. Unfortunately, there is no way for me to predict the exact results of this process. What I can (and will) do is make sure that you make decisions about you and your family with as much information as possible.

Below is a general discussion of the general practice and procedures which you may experience as part of your divorce.

1) Alimony and Child Support

(a) Child Support

The most recent child support guidelines were put into effect on January 1, 2009. The guidelines control the amount(s) of support paid from an obligor spouse to the obligee spouse. The guidelines are based on a number of factors. The current formula takes into consideration the joint gross income of the Parties, with deduction(s) for costs of child care, insurance and some other expenses. We will work through a worksheet (if we have not already) that estimates the amount of support you will receive (if applicable to your circumstances) or pay (if applicable to your circumstances.)

Be advised that the child support guidelines are a strong indication of a payor's obligation. The amount paid can also be affected by the custodial arrangement of the children. In order to stray or deviate from the guidelines, the Judge must make written finding of fact and find that your case does not warrant the application of the child support guidelines. Gross income of the Parties, from which the guidelines are calculated, could be contested. Often, when one Party is "self-employed" or does not receive a typical paycheck, obtaining an accurate amount of income on which to base support can be difficult and involve some investigation.

Typically, support ends or is substantially reduced when the children reach "emancipation." "Emancipation" usually occurs when a child finishes college or when the child becomes self-supporting, whichever is earlier. The facts of each case also are considered.

Child Support can also be modified upon a showing of substantial and material change in circumstances, such as loss of income, disability of the Parties or change in employment status. If at any time during your case, your employment status changes, be sure to immediately notify us.

(b) Alimony

In 2011, Massachusetts enacted the Alimony Reform Act. The statute provides some guidance to the Courts as to the amount and duration of a potential alimony order. Further, the statute defines "general term alimony" "rehabilitative alimony and "transitional alimony." The statute also defines so called "termination events" wherein a payor spouse may expect their support obligation to end.

Despite the new law, basic tenets of alimony still concern the payor spouse's ability to pay and the recipient spouse's needs. Typically, the Court will assess the parties' marital history, finances, health, age as well as a number of factors to determine if alimony is appropriate, and if so, how much.

If applicable, the Parties should consult a tax expert to discuss the implications of the payment or receipt of alimony or spousal support and the tax consequences thereof.

(c) General Thoughts on Alimony and Child Support

The New Alimony Reform Act greatly changes the interplay between alimony and child support. Certain income is excluded from calculating alimony obligations if already used in calculation child support.

2) Custody and Visitation

There are two separate "forms" of custody that apply to each situation, legal custody and physical custody.

Legal custody refers to the ability to make major decisions regarding the child(ren)'s welfare, including matters of education, medical care and emotional, moral and religious development.

Physical custody refers to where the child(ren) principally resides. Where one parent has "sole physical custody," the child(ren) resides with and is under the supervision of that parent. The noncustodial parent has a reasonable visitation schedule (now commonly referred to as "parenting time(s)) with the child(ren). Where both parents have "shared physical custody," the child(ren) has periods of residing with and being under the supervision of each parent, and a "parenting plan/schedule" is implemented that assures the child(ren) frequent and continued contact with each parent.

In most situations, each parent will have joint legal custody of the child(ren). In fact, joint legal custody is presumed, unless the parent opposing it can show solid reasons why it is not appropriate. "Joint legal custody" says nothing about, and does not affect, the amount of time the child(ren) spends with each parent.

Symbolically, the designation "joint legal custody" acknowledges for the non-custodial parent his or her continuing rights and responsibilities with respect to the child(ren). Practically, there is some evidence that non-custodial parents who are joint legal custodians tend to remain more involved in the development of their children and tend to meet their child support obligations more consistently.

More often than not, joint legal custody is awarded to both parents, and physical custody remains with one parent, with whom the child(ren) primarily resides.

While it may seem that in the majority of divorces, it is the mother who has physical custody, each case is determined by its own facts. There are many cases where a Father has primary physical custody. Mothers may seem to obtain physical custody more often (in Court or by agreement of the Parties) not simply because of a prejudice in favor of mothers as primary caretakers, but also as a pragmatic solution, as mothers are more often unemployed or partially employed outside the home while the children are young and need the greatest care-taking. Under this type of arrangement the child(ren) have parenting time with the non-custodial parent on a particular schedule. That schedule depends on a number of factors including the schedule(s) of the Parties, their proximity to each other and the needs and schedule(s) of the children. The parenting times usually designate specific weekday and weekend visits, addresses holidays (whether shared or alternated) and vacations (school year and summer).

Some parents can also work out, or the Court in some circumstances can order, rather effective shared physical custody plans or parenting plans. To succeed, shared physical custody requires extraordinary communication and cooperation on the part of both parents.

Custody (or child-related) issues are the areas in divorce law that are never written in stone. Even after the divorce, a Court can modify custody based on a "material change of circumstances" and the "best interests" of the child(ren).

Also, each case is determined by its own individual circumstances. For this reason, it is critical (particularly where custody is disputed) that I gather from you as much factual information as possible concerning your child(ren) and the parenting roles/patterns that existed during your marriage.

Finally, keep in mind that custody is also the area in which the parents themselves are the most qualified to work out schedules and sharing arrangements. You and your child(ren)'s other parent know your child(ren) best. Lawyers and judges, as third parties and relative strangers to the family, are less able to tell you what will work best for you and your child(ren). Custody, frankly, is also the area in which lawyers and judges most loathe to see disputes. A contested legal battle for the custody of child(ren), unfortunately and invariably, tends to bring out the worst in everyone and wreaks havoc with parents and children. While litigation is sometimes unavoidable, alternatives (including mediation and joint counseling) should be explored before litigating a custody issue.

3) Division of Property

The division of marital property (asset or debt) in Massachusetts is guided by statute, M.G.L. c. 208, § 34, often referred to simply as "Section 34." The statute considers 21 factors which the Court assesses in determining an equitable division of property. The factors the Court considers are as follows:

  1. Length of the marriage;
  2. The conduct of the Parties during the marriage;
  3. The age of the Parties,
  4. The health of the Parties;
  5. The station or standard of living of the Parties
  6. The occupation of the Parties;
  7. The amount and sources of income of the Parties;
  8. The vocational skills of the Parties;
  9. Employability of the Parties;
  10. The estate of the Parties (assets, debts, property (real and personal) ;
  11. The liabilities of the Parties;
  12. The needs of the Parties;
  13. The opportunity of each for future acquisition of assets;
  14. The opportunity of each for future acquisition of income;
  15. The present and future needs of the dependent children of the marriage;
    The Court may also consider:
  16. The contribution of each of the Parties in the acquisition, preservation or appreciation in value of their respective estates;
  17. The contribution of each of the Parties as a homemaker for the family unit; and
  18. The opportunity of the Parties to obtain health insurance coverage.

Marital property - called "the estate" in Section 34 - encompasses all property that you or your spouse own - whether or not you own that property jointly (either with your spouse or some other party), separately, in trust or whether you (or your spouse) received the property, for example, as an inheritance from your parents or a gift from your spouse's great aunt. It does not matter when or how you or your spouse acquired the property, it is "on the table" for discussion and exposed to the equitable powers of the Court. Pension benefits, business interests, accounts receivable - you name it, it is part of the marital "estate" if you or your spouse have it and it can be divided or assigned to you or your spouse as part of the divorce. The specific circumstances of your case will determine an appropriate equitable division of the marital property.

Massachusetts is what is known as an "equitable division" state. This means that, under Section 34, property is "equitably" divided in accordance with the application of the factors enumerated to your specific circumstances. What is "equitable?" The answer depends, again, on the particular facts of your case. If the Parties and counsel cannot agree on an "equitable" division, the Court will decide what is "equitable" based on the factors listed in Section 34. These are the factors (such as age of the Parties, length of the marriage) underlined in the statute above.

"Fault" or "conduct" plays a very minimal role in determining how property is to be divided. (This is also true in alimony awards.) In my experience, conduct becomes a factor of significance only when the conduct is so egregious as to be shocking or whether that conduct is so prevalent as to adversely affect an asset or debt of the marital estate. For example, if a spouse took off to Cancun with a significant other and accumulated a substantial amount of debt, the other spouse has a pretty good argument that they should not have any liability for that debt.

In determining what is "equitable," Courts (and therefore lawyers when negotiating with opposing counsel or advising their clients) often presume that marriage is an economic partnership and the marital property should be divided 50-50. The 50-50 concept works well if the couple has a fair amount of property that can be equalized with a minimum of disruption. For example, if the net equity in the family's house is $ 50,000 (that is, the fair market value minus the outstanding mortgage balance) and the family has $50,000 in stocks, bonds and savings, one spouse may keep the house and the other keep the stocks, bonds and savings. Unfortunately, most families do not have this level of flexibility, since the bulk of their money is tied up in one major asset - the marital/family home.

There is frankly no ideal solution about what to do with the house upon divorce, since often the spouse having physical custody of the child(ren) wishes to stay in place until the child(ren) finish school. While (depending on the then current market trends) there may be equity in the marital home, it is the least expensive appropriate housing available. Refinancing to buy out the other spouse's interest may be a significant and costly burden and sometimes not possible depending on the valuation of the property. In cases where there is no equity or negative equity, the parties often need to be creative to work towards a viable solution. Depending on the facts of the case, Courts sometimes permit the custodial spouse to remain in the house until the youngest child is emancipated. The property is then sold (or refinanced) and the proceeds divided (again depends on the economics at the time). If there are no minor children involved, often the property is sold immediately and the proceeds divided or one party may seek to buy out the other. Again, this is all dependent on your particular circumstances with due consideration to the economic climate, property valuation, mortgage amount(s), and the like.

Other major issues that arise in the context of property division are dividing furnishings and personalty within the home, business interests and pension or profit sharing plans. Furnishings and other relatively minor items of personal property (such as clothing, dishware and vehicles) are usually divided by agreement of the Parties. Frankly, most judges will have little patience with Parties who are not able to divide such property by agreement, as the Court's schedule is already overburdened with issues the Court (and most Parties) consider more significant, such as custody or the division of more valuable property.

Assets such as business interests and pension plans are more complicated to divide only because they do not have an easily determinable value (as do bank accounts, for example). Unless the Parties can reach agreement concerning value, an expert will have to be hired to value these assets. While Courts rarely award a percentage of one spouse's business interest to the other, the value of that interest is a marital asset and sometimes used to offset some other marital asset. Thus, valuation becomes a major issue.

Again, while there is a routine practice of dividing marital assets 50/50, each case turns on its own facts. As with custody issues, the facts of your individual case are critical to determining the "equitable" division of your marital assets.

PLEASE make sure that you provide my office with a complete list of all real estate, accounts, investments, personal property items of significant value (collectibles etc.), debts, loans, credit cards, bank statements and any other assets or debts of the marriage.

4) Procedure

(a) Filing for Divorce

As we discussed, there are essentially 2 separate "categories" or ways to file divorce in Massachusetts - "fault" or "no fault." The procedures involved in each are significantly different.

i."No-Fault"

A "No Fault" Divorce can be filed by both Parties ("1A" Petition) or by one party (a "1B" Complaint).

In a "1A" divorce, both the husband and the wife (and their respective attorneys) are each satisfied that the other has been forthright about his/her assets and income. After one or more negotiating sessions (between husband and wife and/or among husband, wife and their attorneys), as well as discussions between attorneys and their clients, the Parties are able to agree on the three issues that must be resolved in any divorce 1) Support (For Children Or Spouse), 2) Asset Division and (3) Custody/Visitation. The "Agreement" is reduced to writing, signed and filed with a Joint Petition for Divorce, Financial Statements and Affidavits of Irretrievable Breakdown. These documents are filed with the Probate Court, and the Court sets a hearing date (usually within four to six weeks after the papers have been filed.) You and your spouse appear in Court for what is called an "uncontested hearing." Generally, the hearing involves about five minutes (after much waiting time) of questions and answers (your name, address, number of children and so on) to the judge, who approves your "Agreement" and enters a judgment of divorce. A "1A" Divorce does not become final until four months after the hearing date. It becomes final automatically, however, and you do not need to go back to Court.

Alternatively, one spouse, seeking divorce on the "no fault" grounds of irretrievable breakdown, can initiate a "1B" Divorce by filing a Complaint for Divorce. Generally, in this type of divorce, both husband and wife acknowledge that the marriage is not salvageable, but they have not been able to reach agreement on asset division, custody and/or support. By statute, the divorce cannot be heard or tried until six months from the date of filing. In practice, the time standards for these types of divorces indicate that the matter will not be PRE-TRIED for at least six months, and most likely a trial date may not occur for approximate fourteen (14) months from the filing date. During this period of time, both attorneys usually conduct what is known as "discovery" (explained below) and typically have at least one negotiating conference to try to reach an agreement. Most often, a Separation Agreement is ultimately negotiated and the hearing proceeds as it does in a "1A." If no agreement is reached, the divorce is actually tried before a Court, with both sides presenting evidence and witnesses. The "1B" divorce automatically becomes final three months after the hearing or trial.

ii."Fault Grounds" Divorce

In addition to irretrievable breakdown as a ground for divorce, there are, in Massachusetts Family Law practice, seven "fault" grounds upon which to base a Complaint for Divorce. While less common in today's filings, those grounds are:

  1. Cruel and abusive treatment (the most common);
  2. Desertion;
  3. Adultery;
  4. Impotency;
  5. Gross and confirmed habits of intoxication (including drug abuse);
  6. Prison sentence; and
  7. Nonsupport.

In general, what occurs during the interim period here is identical to what I have sketched out in describing the "1B" Divorce, including "Discovery" and "Temporary Orders" (described below.) I should stress again that, with respect to alimony, custody or property division, the relative "faults" of the Parties are seldom decisive and, with some extreme exceptions, play little role in resolving asset division or support.

(b) Automatic Restraining Order(s)

Upon the filing of a Complaint for Divorce, the Court issues an automatic Restraining Order upon the Parties which PROHIBITS BOTH PARTIES FROM:

  1. Selling, transferring, encumbering, concealing, assigning, removing or in any way disposing of any property, real or personal, belonging to or acquired by, either party, except: (a) as required for reasonable expenses of living; (b) in the ordinary and usual course of business; (c) in the ordinary and usual course of investing; (d) for payment of reasonable attorney's fees and costs in connection with the action; (e) by written agreement of both Parties; or (f) by Order of the Court;
  2. Incurring any further debts that would burden the credit of the other party, including but not limited to further borrowing against any credit line secured by the marital residence or unreasonably using credit cards or cash advances against credit or bank cards;
  3. Changing the beneficiary of any life insurance policy, pension or retirement plan, or pension or retirement investment account, except with the written consent of the other party or by Order of the Court; and
  4. Causing the other party or the minor child(ren) to be removed from coverage under an existing insurance policy, or permitting such coverage to lapse, including medical, dental, life, automobile, and disability insurance. The Parties shall maintain all insurance coverage in full force and effect.

The logic behind such an order is that the Court seeks to maintain the status quo during the pendency of the divorce. There are some circumstances wherein the order, upon motions, may be altered.

(c) Temporary Orders

Before settlement or trial and where appropriate, the Court can issue "Temporary Orders"

"Temporary Orders" may be the first experience you have with a Judge and the Probate Court system. After a Divorce Complaint is filed, if you and your spouse cannot agree to the circumstances under which you both will live during the interim period before the Court has a trial or the Parties negotiate a Separation Agreement, Motions for Temporary Orders are filed. Most commonly, the orders sought address: use and occupancy of the marital home, insurance coverage, temporary child support/alimony, temporary legal/physical custody of children and parenting times. In the Courthouse on one of these motions, you are ordinarily first sent to the "family service office" for mediation. If mediation proves unsuccessful, the matter is presented (typically by the attorney's by way of oral arguments) to a Judge for decision. Temporary Orders, once made, typically remain in effect until trial or agreement is reached, however they can be re-addressed upon a substantial change of circumstances throughout the divorce.

(d) Mandatory Disclosure - Rule 410 - Document Exchange

Within forty five (45) days from the service of the Divorce Complaint, the Parties are obligated to exchange a long list of assets and debts and other relevant documents pertaining to the marital estate. The intent here is based on "full disclosure." All Parties are entitled to realize and obtain information so that their attorneys and the Court can make an appropriate property assessment of the Parties' marital estate.

According to Supplemental Probate Court Rule 410, the mandatory disclosure must include the following:

  1. The Parties' federal and state income tax returns and schedules for the past three (3) years and any non-public, limited partnership and privately held corporate returns for any entity in which either party has an interest together will all supporting documentation for tax returns, including but not limited to W-2's, 1098's 1097's, K-1, Schedule C and Schedule E;
  2. Statements for the past three (3) years for all bank accounts held in the name of either party individually or jointly, or in the name of another person for the benefit of either party, or held by either for the benefit of the Parties' minor child(ren);
  3. The four (4) most recent pay stubs from each employer for whom the party worked;
  4. Documentation regarding the cost and nature of available health insurance coverage;
  5. Statements for the past three (3) years for any securities, stocks, bonds, notes or obligations, certificates of deposit owned or held by either party or held by either party for the benefit of the Parties' minor child(ren), 401K statements, IRA statements, and pension plan statements for all accounts listed on the financial statement; and
  6. Copies of any loan or mortgage applications made, prepared or submitted by either party within the last three (3) years prior to the filing of the complaint for divorce;
  7. Copies of any financial statement and/or statement of assets and liabilities prepared by either party within the last three (3) years prior to the filing of the complaint for divorce.

It is imperative that you immediately begin to compile all responsive documents within your custody or control. Upon the exchange of documents, you will be required to sign an affidavit and file same with the Court verifying your compliance with the statute.

Failure to disclose or misstate your finances can result in severe sanctions and penalties from the Court. If you are having difficulties collecting the appropriate documents, let us know and either I or a member of my staff will assist you in completing this task.

Sometimes, certain documents are not in your possession or you may have left them in the marital home (if you moved out). If this is the case, let us know accordingly.

(e) Discovery

"Discovery" is simply a legal technique for getting information. Once the mandatory disclosure is complete, the Parties have the ability to seek further information from the other. It can be accomplished informally with one side simply asking for information or it can be framed more formally, requiring responses under oath. Typically, in a divorce action, the following more formal discovery techniques are used:

  1. "Interrogatories," in which a list of written questions is sent to one party who must answer those questions under oath within thirty days or so;
  2. "Requests for Production of Documents" in which one spouse sends a list of documents he or she wishes to review to the other spouse. The documents may include supporting business records, business tax returns, business accounts, historical retirement/pension statements, wage statements, brokerage records and so on; and
  3. "Depositions," in which a party is orally questioned, under oath, by the other spouse's attorney and the questions and answers are taken down and transcribed in booklet form by a stenographer.

While most attorneys utilize discovery as a legitimate means of obtaining information and preparing for a trial, it is also unfortunately and occasionally used to harass. Whatever the goal, however, it is a proper and legitimate tool if used appropriately. If you are the subject of any of these techniques, my advice to you will be to be thoroughly prepared and scrupulously honest. You and I will work closely together in responding to, and initiating, discovery.

(f) Parenting Classes

Within 60 days of the filing of the Divorce, BOTH Parties (in a case where there are children) are required to attend and complete a Court approved parenting class. My office has all necessary contact information and schedule for classes in your area. There is a fee for the classes. The classes are typically 2 to 2.5 hours each over the course of two days. At the end of the class, you will be given a certificate of attendance. Make sure you deliver the original to my office as it must be filed with the Court.

The Court will not allow the Parties to get divorced unless the certificate(s) are on file with the Court.

(g) "Trial"

If the Parties cannot agree on one or more issues, the Parties will present their evidence and arguments to a judge at trial, and the judge will decide the disputed issues.

Approximately 90 percent of divorces in Massachusetts are settled prior to trial by agreement of the spouses. Should your case go to trial, which is unlikely, you and I will spend a good deal of time preparing for it, so that you will know precisely what to expect long before the trial date.

(h) Settlement

At any time, should you and your spouse agree to all terms of settlement, the Parties can enter into a Separation Agreement. The Agreement is typically a complex legal document that is carefully drafted to address all of the terms of the marital dissolution.

5) Legal Fees/Costs & Miscellaneous

At the outset of your case, you paid or will pay a retainer to my office. Typical retainers for contested divorces range from $ 3,500.00 to $ 7,500.00 depending upon the complexities involved in your case. The terms of how the retainer and my fees work are explained within a written fee agreement which you and I are required to sign.

To some extent, you can control the costs of your divorce by remembering that I bill for all time expended on your case, including telephone calls with you.

Consequently, if you can timely copy and assemble documents and provide information, for example, completed questionnaire(s), that saves me time and saves you money. Beyond that, as we discussed, your costs are a function of the amount of time I spend on your case, which is (in turn) a function of how reasonably or unreasonably you and your spouse behaves during this process.

Finally, bear in mind that, while I am concerned and empathetic with what you are experiencing, I am not a trained therapist. Many people benefit from a therapist during this stressful time, and it is certainly something to be considered. I encourage you, if you find yourself experiencing unusual stress, to explore these options. Your cooperation and attentiveness is crucial to managing this process effectively.

You should always feel free to call me with any questions or concerns as they arise. I may not be available each time you call, but I will return your calls as quickly as possible. Often, I am in Court, especially in the mornings. I am also available via email. I do respond to emails after hours and on weekends. However, email should not be used to obtain specific advice. I understand that things may come up where you may need some guidance. I will try and respond as best I can. Also, you should feel free to speak directly to my assistant if you need to get a message to me in an emergency situation. For in depth discussions, a face to face meeting may be necessary.

In closing, I would simply like to reiterate that I look forward to working with you over the coming months. While divorce is never an easy process, I assure you that I and my staff will do our best to minimize the difficulties of this period and to collaborate with you in achieving a fair resolution. While I cannot guarantee the exact outcome of your case, I can guarantee that I will do my best to ensure that you understand the process and make the most informed decisions possible for you and your family.