Divorce is Never Easy
Divorcing your spouse is never an easy situation. However, the more you know about the divorce process in Massachusetts, the better equipped you will be emotionally and financially to deal with this life-changing event. Given the breadth of information needed to complete a divorce in Massachusetts, the assistance of an experienced family law attorney can be invaluable and often can save you money in the long run.
In Massachusetts, a Probate and Family Court judge will address the following matters in a divorce:
- Child custody (legal and physical);
- Parenting time;
- Child support;
- Spousal support/alimony;
- Health and life insurance; and
- Division of the G.L. c. 208, sec. 34 marital estate.
Massachusetts divorce law is equitable in nature and makes the best interests of a child the primary concern in cases involving children. The laws are also considerate of vulnerable spouses who may not have the financial means to litigate a case.
You will want to familiarize yourself as much as possible with the Probate and Family Court procedures, whether you are filing yourself or hiring an attorney, so that you will understand the process in order to make informed and rational decisions regarding your divorce.
Massachusetts Residency Requirements
In order to obtain a divorce in Massachusetts, you have to meet one of the following criteria:
- One party must live in the Commonwealth and the cause for the divorce occurred also occurred here;
- Both parties must live in the Commonwealth; or
- One party lived in Massachusetts for more than one year (if this is true, the cause for divorce can occur outside of Massachusetts).
If the Court finds that the person filing for divorce moved to the Commonwealth to obtain a divorce and has lived here for less than one year, the Court will not enter a divorce.
In order to “live” in the Commonwealth, it means your domicile is in Massachusetts – not that you have a place to get mail in the state. Thus, a person must have a place to live in Massachusetts and hold him or herself out as a resident of the state.
Types of Divorce
You have a few choices when it comes to filing for divorce against your spouse. The most commonly used grounds for divorce are irretrievable breakdown of the marriage (either contested or uncontested) and cruel and abusive treatment. However, there are additional – but rarely used – grounds for divorce that may be applicable to your situation.
If you file for divorce due to an irretrievable breakdown of the marriage, you are filing a “no-fault divorce.” With a no-fault divorce, neither party is blaming the other as the reason for the breakup. Simply put, one or both parties want a divorce. There are two types of no-fault divorces – a “1A” and a “1B” divorce.
A “1A” divorce is a joint decision by the parties who have decided the marriage is irretrievably broken and they have already agreed to all issues regarding child custody and parenting time, child support, alimony/spousal maintenance, and division of the marital estate. This type of filing is also called an uncontested divorce.
A “1B” divorce would be appropriate when only one spouse believes there is an irretrievable breakdown of the marriage, or both spouses want to end the marriage, but cannot agree on the terms of a divorce prior to filing. This is a contested divorce. If the couple can come to an agreement later, they can always convert it to an uncontested “1A”divorce.
A contested divorce will cause the court to implement an automatic financial restraining order that prohibits parties from changing beneficiaries on insurance or retirement assets, incurring debt in the other person’s name or converting assets without joint or court approval. Essentially, once a divorce is filed, it is important to keep the financial “status quo.”
Grounds for a “Fault” Divorce
There are many outdated grounds for divorce that are still mentioned in statutes but rarely used by litigants. Some include:
- chronic intoxication;
- drug addiction; and
- confinement to prison.
Cruel and abusive treatment is typically the only fault-based ground used when filing for divorce. In order for the Court to enter a divorce based on a fault-based ground, it must take testimony and make specific findings regarding the fault alleged by the plaintiff.
Where Do I File My Divorce Form or Petition?
The divorce process in Massachusetts officially starts when you file for divorce. You must file for your divorce in the MA county in which you and your spouse currently reside, the county in which you and your spouse last resided, or the county in which the plaintiff currently lives. If your divorce is not filed in the right county, it may be dismissed or transferred to the appropriate county.
What Forms and Fees are Required?
When filing for divorce, the following forms must be submitted to the Court at the time of filing:
- Joint Petition for Divorce (used when both parties have come to a written agreement related to all issues and both spouses will sign the petition.)
- Joint Affidavit of Irretrievable Breakdown – this is a basic fill-in-the blank form that permits you to get divorced without having to wait six months.
- Separation Agreement: If you are filing a “1A” divorce, you must submit this document at the time of filing. If you are filing a “1B” divorce, this can be submitted when you have reached agreement on all relevant issues.
- Registry of Vital Records and Statistics Certificate of Absolute Divorce or Annulment (R-408 Form): Both spouses must fill out this form and provide all relevant information.
- Financial Statement: If you make less than $75,000, you may fill out a “Short Form” financial statement. If you make $75,000 or more, you must fill out a “Long Form” financial statement. This provides the Court an accurate reflection of your income, expenses, assets and liabilities.
- Marriage License: You must provide a certified copy of the marriage license to the Court. The information on the marriage license is what is used to fill out the Complaint or Joint Petition for Divorce.
- Military Affidavit: You must attest to whether or not anyone involved in the divorce is currently serving in the United States military.
If you have children, you must also file:
- Affidavit Disclosing Care or Custody: This form notifies the court the person/people the children have been living with and any other existing or previous custody orders.
- Child Support Guidelines: The Probate and Family Court promulgated new Child Support Guidelines in September of 2017.
- Complaint for Divorce: After filing, you will be provided with a summons that must be served on the Defendant.
- The following “1A” forms:
- R-408 statistical form;
- Certified copy of your marriage license;
- Military affidavit;, and, if you have children
- Affidavit Disclosing Care or Custody.
Petitioners should make at least two copies of every form and document they file. The originals need to be filed with the Court; each party should have a copy of every form filed with the Court.
If you are filing a “1A” divorce, the filing fee is $215.00. If you are filing a “1B” divorce, the filing fee is $220.00.
The divorce process in Massachusetts can be confusing and time consuming. Given how much is at stake, you should seriously consider hiring an experienced family law attorney who can navigate the difficulties that can be encountered in a divorce.