Divorce FAQ
Q: How long will the divorce take?
A: In Massachusetts, if the divorce is uncontested, meaning both parties are in agreement as to the basic terms, the divorce may be granted immediately after a short procedural “cooling off” period. However, when the parties cannot agree about issues like support, property division, or other important details the divorce may take months or even a year to litigate.
Q: What if my spouse is hiding assets?
A: Both parties must disclose financial information at the onset of the divorce, including information related to their bank accounts, salary, retirement benefits and other financial dealings. Plus, your lawyer has legal tools at his or her disposal to demand further documentation on assets. Once the judge reviews your case, there should be a complete picture of the parties’ financial positions.
Q: What if we have a prenuptial agreement?
A: Your attorney should review the agreement to ensure that it is enforceable. Generally it will be if it was entered into voluntarily, with full disclosure of finances and it is both fair and reasonable at both the onset of the marriage and the time at which it is sought to be enforced.
Q: What if I don’t show up for court?
A: If you never show up at all, your spouse can get a “default judgment” and the divorce will be granted anyways. That’s bad for you because you won’t have any voice in determining property division, support or child-related issues.
Q: How much will my divorce cost?
A: Unfortunately, there may not be a simple answer at the beginning of your case because the total fees will depend on the intricacy of the issues and the time it takes to sort them out. As your case progresses, your attorney may be able to provide you with a better estimate as to the costs of particular aspects of your case. Discuss these costs in light of the potential benefits they may bring to you. As a rule of thumb, however, when the parties are in agreement, things go smoother and costs remain lower for both sides. When you and your spouse fight about every last detail, the proceedings drag on, judges get frustrated and costs go up.
Q: What if my spouse uses drugs?
A: Drug testing of your spouse is not automatic in divorce, but it can be done by court order if children are involved. In fact, substance abuse is an important factor in the court’s determination of custody.
Q: Does the child’s wishes have any effect on custody decisions?
A: Sometimes. Based on the age of the child (and the motivations of their wishes), Massachusetts will let child’s wishes become one of the many factors the court considers. Typically, the older they are, the more weight their wishes carry.
Q: If I give up my visitation or custody rights, can I stop paying child support?
A: Nice try! No. This, however, may depend on the circumstances. Usually, the courts do not give parents the right to abandon children in an effort to avoid their legal obligation to support them. In some cases, though, children of sufficient age are deemed to have abandoned the parent and can be deemed emancipated for child support purposes.
Q: The kids are with me for the summer – can I stop paying support in those months?
A: Probably not. This will depend on whether or not you and your ex- have an agreement on the topic. For example, Massachusetts may consider substantial time sharing and “extraordinary” visitation expenses as a reason to argue against the state-mandated guidelines. On the other hand, think about it this way: the parent receiving support must continue to pay the mortgage, taxes, insurance and maintenance of the family home even in the temporary absence of the child.
Q: What property gets divided in divorce?
A: In a Massachusetts divorce, the court will always try to divide all of the parties’ property so that everyone can get on with their lives and put the divorce behind them. The courts recognize that there is usually marital and separate property (and debts) to be divided. Marital property isn’t always divided in half. The court tries to make an equitable (fair) division after considering factors set forth in Massachusetts General Laws Chapter 208, Section 34.
Q: Can I empty the bank account before divorce?
A: Yes, you can do so if your name is on the account and it’s before the plaintiff files the complaint or the defendant is served with the complaint.
Q: How can I figure out the “equity” in our home to buy out my spouse’s portion of the house?
A: The first step is to determine the fair market value of the house. Then, subtract the mortgage balance and any other liens on the property. The result is the equity.
Q: What’s the deal with the stuff that each spouse owned before the marriage?
A: The property that each spouse owned before the marriage, as well as property given to or inherited by one spouse during the marriage, usually remains that spouse’s property. It may, however, be considered as part of the total value in determining a fair allocation of the marital property.
Q: I worry about my spouse, who owns a business. He’s saying that business isn’t as good as it was before. He’s hiding stuff or lying…can he do that?
A: No. This is one of our attorneys’ favorite situations – and the start of a discovery strategy. We often find that when a business owner faces divorce, the business many times becomes troubled and reduced. We call this “RAIDS.”It is explained best as “Recently Acquired Income Deficiency Syndrome.”
Modification of Custody FAQ
Q: Under what circumstances can custody or visitation orders be changed in Massachusetts?
A: After a final decree of divorce or other order establishing custody and visitation is filed with the court, parents may agree to modify the parenting terms. This modified agreement (also called a “stipulation”) can be made without court approval. However, if one parent later reneges on the agreement, the other person may not be able to enforce it unless the court approved that modification.
If a parent wants to change an existing order, and the other parent won’t agree to the change, the parent wanting a change must file a motion asking the court to modify it. If that parent can show a substantial – or material – change in circumstances, the court would likely modify it. The high burden helps prevent the court from having to deal with frequent and repetitive modification requests.
Q: What qualifies as a substantial (or material) change in circumstances?
A: The most common are geographic moves, changes in one parent’s lifestyle, and changes in the child’s development, among others.