The decision of when and how to file for divorce can be a very emotional, difficult and overwhelming decision to make. Our law firm understands that many people considering filing for divorce struggle with all the unknowns that come along with the consideration and pride ourselves on walking our clients through the divorce process methodically so that all of their concerns are addressed and questions are answered prior to making any final decision.
What will happen with the children? How do I tell the children? When should I tell the children? What will happen with the house? Will I be responsible for the credit card debt? How will the retirement accounts be divided? How much support will I be pay? How will I support myself, when I have not worked outside the home? How will I support the children? What will the parenting plan be like? These are just some of the hard questions clients have when they come to see us.
While the divorce process can be complex certainly there are certain standard guidelines that are consistent through each divorce. In Massachusetts these guidelines are governed by chapter 208 section 34, of the Massachusetts General Laws.
Simply, in Massachusetts, a party can file either a contested Complaint for Divorce or the parties together can file an uncontested Complaint for Divorce. An uncontested divorce is one in which the spouses are able to come to a full agreement on all issues, as to how to dissolve their marriage and resolve issues such as the division of assets, child custody, parenting time, support and allocation of debts. This is accomplished by the parties entering into a Separation Agreement, which is a contract that outlines the terms for the resolution of the divorce. This Separation Agreement is then either merged and incorporated by the Court as part of the divorce decree or incorporated and not merged by the Court as part of the divorce decree but rather survives as an independent legal contract. Once an agreement is executed by the parties and submitted to the Court, the parties must appear before a judge to affirm the terms contained in the agreement, on the record, and then a Court must make an independent finding that all 34 factors of chapter 208 are met by the agreement, and find that the agreement is fair and reasonable under the totality of the circumstances. Once a judge has made that determination, the agreement will be approved and the agreement will enter what is called the Nisi period. The Nisi period is a term of time (120 days) where the parties, if fraud was to be found, might be able to reopen the case. During this time, neither party is able to marry another person. Once the 120 days have lapsed the agreement becomes finalized and a Judgment of Divorce is entered by the Court.
In an contested divorce, the parties are unable to come to a full agreement as to all of the issues involved in the dissolution of their marriage, as such, the matter seeks the intervention of the Probate and Family Court. In this process, one party will be the Plaintiff (filing party) and one will be the Defendant(person who is served with divorce action). Once the Plaintiff has filed the Complaint for Divorce, (and several other required documents) the Court will issue a Summons, which will need to be served on the other party to the action. These proceedings can continue to trial wherein the Probate and Family Court makes a determination as to spousal support, an equitable distribution of the parties’ assets and debts, child support, child custody, and parenting time, should the parties be unable to resolve their issues. However, in many cases where a divorce is initially a contested, the parties can come to an agreement as a result of negotiations on issues that are in dispute and can avoid having the case go to trial.
Whether your divorce is contested or uncontested, our law firm can assist you in your divorce by providing you with the expertise, experience and guidance to protect all your interests, whether they be related to the division of marital assets and debts, payment of alimony and child support, or concerning custody of and the parenting plan for your children. We understand the difficult and unique challenges each client faces when facing divorce and we approach each case with a combination of sensitivity and skill to accomplish results in the most expedient and cost effective manner.