March 11, 2020

Things to Consider When Considering Divorce

Divorce can be a weighty and emotional process. If you are getting a divorce or thinking about it, either way, you should know what to expect.

You are eligible to file for divorce in Massachusetts if: 1) you have lived in the state for one year prior to filing, or 2) if you ever lived here as a couple and the reason the marriage ended happened here. The state has several legal paths to divorce to consider.

1. The Separation Agreement

For any divorce, you and your spouse will end up with a written agreement upheld by a judge that settles certain issues. Some of the most common factors involved include:

  • Dividing joint assets. This can get tricky. Any income, property, or debts accumulated during the marriage (and sometimes even before) could be considered jointly held. State law dictates that the distribution must be “equitable”—not necessarily 50-50, but fair. Also, you must declare everything. It is illegal to hide assets to avoid their division.
  • Alimony (spousal support). If you depended on the income of your spouse to maintain your standard of living, or if you took primary responsibility for household labor over paid job opportunities, you may want to consider negotiating terms for this.
  • If you have children:
    • Custody. You must decide on custody rights for each child. It will either be shared, or one parent will have sole custody.
      • Legal custody is the right and responsibility to make important decisions for the child (such as those involving education, health care, and emotional development).
      • Physical custody is about where the child lives. If it is shared, the child must have frequent & regular contact with each parent. If not, then the parent without custody must have “reasonable parenting time” unless the court decides that it’s against the child’s best interest. You will probably need to consider a visitation arrangement.
    • Child support. Where appropriate, state guidelines will generally determine the amount that a non-custodial parent needs to pay to maintain their child(ren). It could be less or more if both parents and the presiding judge agree.

If you can, it’s important to consult a lawyer to make sure that the agreement is fair, covers everything relevant, and holds up to state laws. It is also extremely helpful to have legal representation during negotiations or in court, especially if your spouse does.

2. Filing for no-fault divorce:

This is the most common approach to making the divorce official, where both parties simply agree that there has been an “irretrievable breakdown” of the marriage. (Many other states call it “irreconcilable differences.”) There are two ways to file a no-fault divorce:

  • File for an uncontested divorce (“1A”) if you were able to finalize a written separation agreement outside of court and both spouses have signed it.
    • The judge must review and approve the agreement for it to take effect, and they may order modifications to the agreement.
  • File for a contested divorce (“1B”) if you are unable to negotiate a complete agreement with your spouse. With this type of filing, there will be a court hearing, which is your chance to call witnesses, and argue your case with evidence. After the hearing, if there are any outstanding disagreements, the judge will make the final decision.

3. Filing for a fault divorce

With this filing method, one spouse attempts to prove in a court hearing that the other was “at fault” for the end of the marriage. In Massachusetts you can claim any of the following faults:

  • Infidelity
  • Abusive treatment
  • Habitual & excessive use of drugs and alcohol
  • Abandonment (for a year or more)
  • Willful non-support (if a spouse has the means to support you, but refuses)
  • Impotency
  • A prison sentence of 5 years or more

This is the original process for divorce, and it is often more expensive and time-consuming. The judge may take a finding of fault into consideration when awarding assets, alimony, custody, and so on—but there is no guarantee.

If you are in need of legal representation or would like to speak to an attorney about filing for divorce, or any other legal issue, connect with an area lawyer online 24/7 by clicking here, or by submitting an email request online today.