Divorce in Massachusetts
Supplemental Rule 410. Mandatory Self Disclosure
Supplemental Probate Court Rule 411. Automatic Restraining Order
208 section 34 Mandatory Factors
DIVORCE IN MASSACHUSETTS
To obtain a divorce in Massachusetts, one party to a valid marriage files a "Complaint For Divorce." The Complaint is filed in the County where the parties last lived as husband and wife (if one party still resides in that County.) (If the "cause of action" occurred outside Massachusetts, there is a one-year residency requirement before the now Massachusetts resident can file for a Divorce.) In the past, there had to be a fault upon which to base the Complaint. Today, there is the "irretrievable breakdown" cause of action, also known as the "no fault" divorce. In the "no fault" situation, one party to the marriage can file the Complaint (pursuant to G. L. ch. 208 section 1B); or, the parties together can file a Joint Petition (pursuant to G. L. ch. 208 section 1A). Once the Complaint or Joint Petition is filed and served, the Probate and Family Court has jurisdiction to terminate the marriage, make an equitable division of marital assets, establish custody and support of minor children. Massachusetts General Laws Chapter 208 governs the Divorce process and spells out the reach and authority of the Court.
Most divorcing parties choose to file for a "no fault" divorce. There are procedural differences between the two "no fault" situations . When a joint petition is filed, the parties must be prepared to file the written "Separation Agreement" within 30 days. This can be a difficult requirement. On the other hand, when one party files the Complaint, there is a statutory waiting period of six months before the Court will have a Divorce hearing. In my experience, it is best to have one party file the Complaint and then work diligently on the terms of the "Separation Agreement" while the statutory clock ticks away. If the parties have been able to come to terms before that six month time period, the Complaint can be amended to a Joint Petition. "No fault" does not mean "uncontested."
No matter which procedure is employed, all divorce actions will require:
- Marriage Certificate;
- Complaint or Petition;
- Summons or Return of Service;
- Form R 408 Statistical Form;
- Financial Statement from both parties; and
- Certificate of attendance at a Parent Education Program (if there are minor children).
In addition to the documents above which are part of the record of the case, the Rules of Domestic Relations Procedure require mandatory self disclosure of a whole host of financial records. (See enclosure "Supplemental Rule 410".) Also, the filing of the Complaint for Divorce effectuates an automatic restraining order requiring both parties to preserve marital assets. (See enclosure "Supplemental Probate Court Rule 411.") Failure to abide by the restraining order may be deemed a contempt of Court.
When negotiating the "Separation Agreement," we are mindful of section 34 of Chapter 208 of the General Laws. This section of the statute sets forth the factors that a judge must consider in determining an equitable division of marital assets. The factors that seem to carry persuasive weight with the Judges are: length of the marriage, health of the parties, amount and sources of income, employability and special needs of children. (See list). The assets available for division include all the normal stuff and such things as pensions and inherited property. In Massachusetts, all assets acquired during the marriage without regard for the title are deemed "marital assets." In a medium or long term marriage, assets acquired by one party before the marriage, in most instances, will be considered a "marital asset."
Alimony is awarded based upon need. (Length of the marriage is a very important factor to alimony awards.) There is no set formula or time period. This is an area that needs discussion.
Child support, in most cases, is set according to the "Child Support Guidelines" in effect at the time the Court makes the child support order. Guidelines support orders are computed using gross income figures. Income includes: salary and wages (overtime and tips); commissions; severance pay, royalties, bonuses, interest and dividends, partnerships or self-employment income, social security, veterans benefits, workers' and unemployment compensation, pensions, annuities, income from trusts, lottery or gambling winnings, net rental income and so forth.
A "Complaint for Divorce" is an civil action. If the parties cannot mutually come to terms about the division of assets, custody and support (and all the particulars of each situation), then there is a trial and the Court renders a Judgment (weighing the "section 34" factors offered into evidence). At the time of the hearing or trial, the Court enters a "Judgment of Divorce Nisi" which becomes "Absolute" 90 days later.
Typically, your Divorce attorney will require a retainer and bill for services by the hour. The amount of the retainer often depends upon your attorney's assessment of the amount of contention he or she perceives to exist between the parties. The client should expect to sign a "Fee Agreement" and replenish the retainer whenever the time billed has depleted it. The Client understands that due to the personal nature and circumstances of domestic relations matters, no precise estimate of legal fees can be given.
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SUPPLEMENTAL RULE 410. MANDATORY SELF DISCLOSURE
(a) Initial Disclosures
(1) Except as otherwise agreed by the parties or ordered by the court, each party shall deliver to the other within 45 days from the date of service of the summons the following documents:
- (a) The parties' federal and state income tax returns and schedules for the past three (3) years and non-public, limited partnership and privately held corporate returns for any entity in which either party has an interest together with all supporting documentation for tax returns, including but not limited to w-2's, 1099's, K-1, Schedule C and Schedule E.
- (b) Statements of the past three (3) years for all bank accounts held in the name of either party individually or jointly, or in the name of another person for the benefit of either party, or held by either party for the benefit of the parties' minor child(ren).
- (c) The four (4) most recent pay stubs from each employer for whom the party worked.
- (d) Documentation regarding the cost and nature of available health insurance coverage.
- (e) Statements for the past three (3) years for any securities, stocks, bonds, notes or obligations, certificates of deposit owned or held by either party or held by either party for the benefit of the parties' minor child(ren), 401K statements, IRA statements, and pension plan statements for all accounts listed on the 401 financial statement.
- (f) Copies of any loan or mortgage applications made, prepared or submitted by either party within the last three (3) years prior to the filing of the complaint for divorce.
- (g) Copies of any financial statement and/or statement of assets and liabilities prepared by either party within the last three (3) years prior to the filing of the complaint for divorce.
(2) The parties shall supplement all disclosures as material changes occur during the progress of the case. Neither party shall be permitted to file any discovery motions prior to making the initial disclosure as described herein.
(b) Unavailability of Documents
In the event that either party does not have any of the documents required pursuant to this Rule or has not been able to obtain them in a timely fashion, he or she shall state in writing, under the penalties of perjury, the specific documents which are not available, the reasons the documents are not available, and what efforts have been made to obtain the documents. As more information becomes available there is a continuing duty to supplement.
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Commonwealth of Massachusetts
The Trial Court
Probate and Family Court Department
Supplemental Probate Court Rule 411. Automatic Restraining Order
Notice to Plaintiff
The following automatic restraining order shall apply to both parties to a complaint for divorce or separate support. This automatic restraining order shall be effective with regard to the plaintiff upon the filing of the complaint by the plaintiff's counsel and with regard to the defendant upon service of the summons and complaint or any other acceptance of service by the defendant.
After service of the complaint for divorce or separate support, on two (2) days' notice to the other party or on such shorter notice as the court may prescribe, a party may appear without thereby submitting his person to the jurisdiction of the court, and move to modify or dissolve the automatic restraining order and in that event the court shall proceed to hear and determine such a motion as expeditiously as the ends of justice require.
This order is in effect until the earliest of the following: (1)the order is modified or dissolved by the court; (2)the order is modified by a written agreement of the parties with court approval; (3)the entry of a judgement of divorce or separate support; (4)the action is dismissed; or (5)by further order of the court.
FAILURE TO COMPLY WITH THIS ORDER MAY BE DEEMED A CONTEMPT OF COURT.
The following order PROHIBITS either party to complaint for divorce or separate support from:
(1) Selling, transferring, encumbering, concealing, assigning, removing or in any way disposing of any property, real or personal, belonging to or acquired by, either party, except: (a) as required for reasonable expenses of living; (b) in the ordinary and usual course of business; (c) in the ordinary and usual course of investing; (d) for payment of reasonable attorney's fees and costs in connection with the action; (e) by written agreement of both parties; or (f) by Order of the Court.
(2) Incurring any further debts that would burden the credit of the other party, including but not limited to further borrowing against any credit line secured by the marital residence or unreasonably using credit cards or cash advances against credit or bank cards.
(3) Directly or indirectly changing the beneficiary of any life insurance policy, pension or retirement plan, or pension or retirement investment account, except with the written consent of the other party or by Order of the Court.
(4) Directly or indirectly causing the other party or the minor child(ren) to be removed from coverage under an existing insurance policy or permitting such coverage to lapse, including medical, dental, life, automobile, and disability insurance. The parties shall maintain all insurance coverage in full force and effect.
The provisions contained in the new summons for divorce or separate support must be served on the defendant, except if personal service is not made as provided in Rule 4 and service is made by publication, said notice shall include a statement that an automatic restraining order has been issued pursuant to this rule. The provisions of this automatic restraining order need not be reprinted in said public notice.
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208 section 34 Mandatory Factors:
- length of marriage
- conduct of the parties
- amount and sources of income
- vocational skills
- liability and needs
- opportunity for future acquisition
- present and future needs of children
- contribution in acquisition, appreciation of estate
- contribution as homemaker