The Big Picture on Divorce in Massachusetts

The first thing you need is solid understanding of how divorce law works in the Commonwealth of Massachusetts. This article describes the basic substance of divorce law. With this information, you should be able to better grasp the overall outline of the separation and divorce process in Massachusetts. You will then be able to make more informed decisions about how you should proceed, once you or your spouse decide that you should no longer live together. Without this big picture understanding, you could stumble blindly through the process, never quite able to recognize whether your expectations for the ultimate bargain are achievable, or at what price.

The section is not, however, intended as a complete reference source that substitutes for the analysis of an experienced divorce lawyer. Each case can involve one, some, or all of the issues discussed in this section. At the same time, factual variations in various couples’ lives make the principles reviewed below of only general applicability. Divorces can, and do, look as different as the people who are divorcing. Given the countless differences among marriages, this section, and each of the websites and blogs maintained by our firm, cannot replace the advice of a skilled lawyer concerning your own divorce or family law matter. Such advice is most valuable at the stage when you are planning a divorce, so that you can avoid any action or inaction that will be more difficult to undo or correct later on. Legal advice remains useful, of course, throughout the process of resolving the various issues discussed on our websites; however, you will be better informed when you do seek legal advice if you have gained a solid understanding of the Massachusetts laws of divorce. 

Click here to get the “Big Picture” in Attorney Irwin M. Pollack’s FREE download called, “The Massachusetts Divorce Handbook.”

Your first court appearance will likely be when temporary orders are made. Since a divorce action may take up to 14 months to resolve, motions (movement) for temporary orders are established in order to establish the status quo.

Both parties bring their completed financial statements to the court and will, most likely, meet with a Family Services officer. As trained mediators, these court officers listen to the issues relating to each party’s situation, hear their motions and attempt to help the parties determine how to both establish and maintain the status quo.

It can be frustrating to spend a substantial amount of time appearing before a Family Services officer when the case is clearly a contested matter and will not be able to be resolved unless the matter is heard and determined by a judge. Understand, however, these officers are often considered to be the eyes, ears and legs of the judge. 

Most motions and temporary orders relate to child custody and visitation, financial issues and protection from harassment or domestic violence. Some other, more troublesome and contentious motions are:

Motion to Vacate:  A Motion to Vacate the marital home is frequently used. Here, the party who filed the complaint is asking that the opposing party vacates the marital home. The statute is clear in terms of the standard of proof that the plaintiff needs for the order: “the health, safety or welfare of the moving party or any minor children residing with the parties must be substantially impaired by a failure for the judge to enter such an order.” 

Some judges have reached the conclusion that this motion is a very serious matter; others simply inquire whether the marriage is over and are inclined to grant relief with little or no evidence presented. This is why an attorney knowledgeable about the family law courts in Massachusetts can make or break your case.

The maximum period of time that a court may order a party to vacate is ninety days at any one time.

Motion for Application for Allowance:  An application for allowance is usually filed at or near the commencement of the action to obtain funds to pay for the legal action on behalf of the client. 

In order to adequately prepare for this motion to be presented, your attorney should compare and contrast both parties’ financial statements with a view toward proving that one party has the wherewithal to support a cause of action and, as a result, has the ability to engage a legal team. Moreover, if there are substantial assets involved, your lawyer should point out that it is necessary to hire experts and they require an upfront retainer.

The statute in Massachusetts is intended as relief to a non-working spouse, who at the beginning of the case does not have access to funds to underwrite the proceeding.

Motion for Attachment:  Your spouse’s property may be “attached” to obtain security in actions other than divorce. For example, your husband or wife may be ordered to pay child support or spousal support. If they were to get married and buy a home with their new spouse, “attaching” that property would secure funds if support were ever to cease. This is a common application of this remedy.

The temporary order stage should not affect the final outcome of the divorce, but from a practical perspective, temporary hearings can be very important since courts often favor a policy of maintaining the status quo.

Temporary orders may be changed if there is a substantial change in circumstances during the course of the divorce that would make the change in the temporary order necessary.

Following the temporary motion session, parents will typically begin a required parenting class, comply with mandatory Rule 410 financial disclosure, and begin formal discovery.

Financial Statements & Parenting Class

A financial statement is the Probate & Family Court form on which each party sets out his or her financial situation. When you fill out the form, you must list all your income, expenses, debts and assets. You are required to file a financial statement in any case where support, alimony or any financial matter may be an issue.

Filing your financial statement is a very serious matter. After you fill it out, you must sign it “under the penalties of perjury.” This means that if you deliberately do not tell the truth, or you leave out information, a judge could send you to jail. Moreover, your credibility is lost and the judge will be less likely to believe you on other matters.

Your attorney will likely help you with your financial statement. If your gross income (income before taxes and other deductions) is under $75,000, you’ll get a “short form.” If your income is $75,000 or higher, you will get a “long form.”

You must attach either a W-2 or 1099 tax form to your statement. If you earn other income from self employment, rental income, or your own business, you will need to supplement your statement with those records as well.

Other than filing your financial statement, all parties in a divorce action in which there are minor children, are ordered to attend and participate in an approved Parent Education Program. Attendance at an approved program is mandatory for parties to a divorce action unless waived by the court. Both parties to the complaint must register with an approved provider in order for the court to move the case forward.

A list of class providers is found here.

Just as your attorney looks out for you, your spouse’s attorney will attempt to zealously protect your spouse’s interests. Sometimes you may think that it is beginning to go beyond that. Sometimes your spouse’s attorney will create problems that seem to have nothing to do with the merits of your case. They simply run the bill higher, and higher, every frustrating day.

Attorneys who engage in these tactics are known as "agitators." Their aim seems to be to inflame the emotions of all parties. Every detail is a showdown to them, nothing is ever worked out and every issue is complex. Agitators are always at court complaining about the conduct of opposing party or counsel. Often the conduct they complain of is the normal and expected response to something far worse that the agitator did. Agitators aren’t out to solve anything, just to do a lot of posturing.

An agitator may be able to prevent progress in your case for a considerable period of time. If the situation becomes intolerable, ask the judge to appoint a master, a referee with limited legal authority, to supervise discovery or other activities that the agitator is blowing all out of proportion.

An experienced agitator is tough to nail down. If he or she already has a bad reputation in court, your attorney might convince the judge that protective orders and sanctions are necessary. Such orders are hard to get. Expect to have to go to court the first time and get only a warning that if the agitator does “this” again, the court will consider imposing a monetary fine on the agitator. Make the best of this difficult situation, move your case along as quickly as reasonable and be glad that you have an attorney to deal with this beast your spouse found

Another type of attorney may passively frustrate your sincere attempts to be reasonable. Opposing attorneys who never respond to calls or letters force you to go to court when to do something that could have been done the easy way. When the other attorney won’t participate or isn’t ready, one salvation is that you will probably do better at trial because your opposition isn’t prepared.

Still other attorneys may paper you to death with letters, discovery requests and court motions. There is little you can do about it. Limits on the number of interrogatories can be exceeded for good cause. Motions can always be set for court hearing, and unless they are blatantly frivolous, the court will likely go through the motions. Restrictions on how much your opposing counsel can use the legal process are unlikely because they would restrict the attorney’s ability to represent his or her client.

The general advice to move your case along as quickly as you can applies to each opposing counsel problem area. Perhaps you can convince your spouse that he or she is spending a fortune in legal fees, only to lose if your spouse loses. If so, you may get some relief. Otherwise, establish your foundation for a request for attorney’s fees and costs based upon the conduct of your opposition. Always present your position in writing throughout the case, request cooperation and then, in a matter-of-fact way, tell the other side you will seek fees if it becomes necessary.

Don’t be shocked if you have to deal with some “unreasonable behavior” from your spouse – this is divorce after all. Each of you may be gruff or uncooperative at times. Being prepared for it can help you discount some grumbling as simply going with the territory. Often, your lawyers can play a useful role by buffering you from each other’s animosity. Just how much unreasonableness does it take to constitute a real problem, and then, how do you respond to it?

Divorce litigation doesn’t always go the way we would like.  It’s not always fair.

Trial or Settlement:  The Art of the Deal

It’s difficult to negotiate for yourself, particularly when emotions are involved, as they tend to be in a divorce. For many couples, trying to negotiate is like reliving the worst moments of the marriage. After all, if the two of you were able to work out a divorce, you might not be divorcing. Does this mean you have to abandon all hope and leave everything to the attorneys? Not necessarily. Here are some tips to help you work out a settlement and avoid a trial:

1.  Never present your bottom line early in the negotiation. In a negotiation you always want to leave room for bargaining and compromise.

2.  Argue issues, not positions. For example, you and your spouse are discussing who pays for the children’s college. Your spouse says the kids will go to state schools; you say they’re going to the best school they get into. The two of you are arguing positions, not issues. The issue is the cost of college and how you’ll finance it.

3.  Make ground rules for your discussions in advance. If you and your spouse are meeting alone, write out a schedule of topics to be covered and stick to it. Agree that neither of you will interrupt the other. 

4.  Be flexible. That doesn’t mean cave, but be ready to compromise. Referring back to the college tuition example, suppose you don’t want to pay anything for college, and your spouse wants you to pay half. What about paying one-third? What about each of you paying based on the percentage of your combined financial statements at the time the children go to school so long as you both stipulate that you both pursue scholarships or school loans?

5.  Be ready to trade. Say that you want the gold necklace that your husband bought you on your third wedding anniversary and he really wants the cookware. You want the cookware, too. Decide which one you want most, and if the values are close enough make the trade.

6.  Leave heated issues for last. This is a lawyer’s trick. Resolve everything you can and save the heated issues for last. Maybe you both want sole custody, and the issue of shared or joint custody isn’t even on the table. If you start off discussing sore points, you’ll get nowhere with the other issues. If you sort out the easier issues such as the house, cars and debts first, you might make better progress on the tougher issues at the end.

7.  If things get too emotional, ask for a time out. Even if you and your spouse have met with the best intentions, you may get nowhere. Break for a few moments before trying to hammer out an agreement again.

Learn more about how to negotiate a settlement agreement.

No matter where you live in Massachusetts, Attorney Irwin M. Pollack and the staff lawyers from The Massachusetts Family Law Group can zealously represent you relating to your divorce or family law matter.

Our offices are in Norwood, Woburn, Worcester, Springfield, and Plymouth.  For a no-obligation consultation, call (800) 910-DIVORCE or contact us today.