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The basics of a contested, fault divorce

Divorce can be complicated, but understanding the basics can make it easier. This week, we will cover the basics of filing a fault divorce. Before continuing though, filers understand that the fault divorce is the much more time-consuming and expensive process.

First, one must determine whether they can file here. The most common path is residency: the spouses have lived in Massachusetts for at least one year. Alternatively, one can file if the reason for the marriage ending happened in the state and both spouses lived as a couple here. For example, if a couple moves to the state, and then one of the spouses cheats on the other.

Second, one must decide on the type of divorce filing. In Massachusetts, divorces are filed under one of two categories: “no-fault” (1B divorce for Irretrievable Breakdown of Marriage) or “fault.” Both can be filed as contested (when one spouse does not want a divorce) or uncontested (when both spouses want the divorce).

For a fault divorce, the filer must provide specific reasons justifying the fault. These reason are adultery, gross and confirmed habits of intoxication, cruel and abusive treatment, desertion, impotency, non-support, or imprisonment of five or more years.

Third, is drafting court filings. Everyone will need to file a certified marriage certificate, Complaint for Divorce, and Record of Absolute Divorce for the Registry of Vital Records. If there are children under 18, one must also file an Affidavit of Care and Custody, Child Support Guidelines Worksheet, and a completion certificate for a court-approved parent education class.

Fourth, is filing paperwork, paying filing fees, and service of process. The divorce filing fee is $200, surcharge is $15, and the summons charge is $5. Filing is done at the Probate and Family Court located in the county were the couple lived together or where either spouse lives now. And, then, the filer will need to serve papers on the non-filing spouse.

Fifth, the spouses will need to exchange financial statements and draft a separation agreement. This is generally done after the non-filing spouse files an answer.

Finally, the court proceedings will begin with a pre-trial hearing and then, if the spouses cannot come to an agreement, a trial. Prior to attending the hearing, there will be pre-trial memorandum and discovery.

Accordingly, as one can see, the process is not easy. This is why the courts recommend filers consult with an attorney.

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