Ask a Divorce Lawyer Blog Series: The Divorce Process in Massachusetts

Top 5 questions you may have when starting the divorce process in Massachusetts

1. Do I need to hire a lawyer, and if so, when do I need one?

The answer to this question really depends on several factors. Factors like the personalities of you and your spouse and the significance of what is at stake in ending your marriage.

Making divorce decisions by yourself and without the help of an attorney sounds like an ideal situation, as it would save you time, money, and maybe, heartache. If you and your spouse are able to resolve these bigger issues together, then you would have to write an agreement that details the terms of your agreement and present it to the court for review and approval. Even when you and your spouse can get along and work out some issues together, there are often other complicated issues to decide, it is a good idea to hire a neutral third person, such as a mediator.

If there are bigger issues involved, which you and your spouse are unable to resolve alone, such as questions of children, money and property, at this point it is a good idea to turn over all the details and the burden of a divorce to a divorce lawyer.

In circumstances that you believe your spouse is being dishonest or vindictive, you should hire an attorney to protect your interests.

Lastly, if your spouse has an attorney, you should be hiring an attorney as well.

2. How much will a divorce cost me?

You will probably find that the cost of a divorce varies quite a bit as there are several factors to take into account. An important factor that is determinative in how much money you will spend, is whether your divorce is contested or uncontested.  Meaning, the more you and your spouse can agree and cooperate on major issues, such as division of property, child custody, child support and so on, the less money you will need to spend on attorneys, legal fees, and court costs.

Once your divorce process has been set in motion, you are faced with attorney fees and court costs. Lawyers typically charge one of the two different types of billing arrangements, either a fixed fee or an hourly rate. The type of divorce you are pursuing can make a difference in which type of billing arrangement your attorney decides is appropriate.

A fixed fee rate means that you and your divorce attorney have agreed ahead of time on the total cost of legal work. Generally, attorneys will not choose this type of billing arrangement unless it appears that your divorce is straightforward with no major issues of disagreement between you and your ex-spouse.

If you are going through a contested divorce (meaning you and your spouse cannot agree on major issues such as dividing up the property, child custody and other things) it is likely that your lawyer will not chose a fixed fee rate because it is hard to predict how long your divorce proceeding could take. It is more likely that the attorney will have an hourly rate billing arrangement.  In this arrangement, your attorney will charge an hourly rate (which differs among different attorneys, usually depending on their level of experience) for the time he or she has spent on your case.

Moira Daly

Moira Daly

 3. Do I have to move out of my house while we are in the process of getting divorced?

You are not required to move out of your house while you are in the process of getting a divorce. There may be circumstances that the court will order one of the parties to vacate the family home, for instance, if there is abuse present.

If you can’t reason with your spouse and something significant is at stake, or the atmosphere in your home has become unhealthy for your children, then maybe moving out is an alternative you should think about. However, if you move out, it may be difficult for you to move back in at a later time if you change your mind.

4. How long could my divorce take? Do I have to go to court?

Again, this largely depends on the circumstances surrounding your divorce. Generally, your divorce will take as long as it takes for you and your spouse to agree on the terms of your divorce  (a.k.a. “separation agreement”) or you have a trial before a judge.

In an uncontested divorce, there is complete agreement and cooperation between the parties regarding all issues, which is written in a divorce agreement.  The agreement includes issues such as child custody, child support, parenting schedules, college education cost allocation, division of assets, division of debt, alimony, health-related insurances, etc.  In this situation, you will complete documents that will be filed with the court and a court date will be assigned for an uncontested hearing.  At this hearing, the judge will review and approve your agreement.  These documents are usually completed by your divorce attorney, and include your joint petition for divorce (which is a court form), affidavits of irretrievable breakdown for each party, financial statements for each party, parenting course completion if minor children are involved, and a certified copy of your marriage certificate.

In a contested divorce, (when you and your spouse cannot reach an agreement on the major issues in your divorce agreement) you are much more likely to have to go to court; maybe many times, depending on the issues. Under these circumstances, your divorce process will be much longer. The timeline for a contested divorce can range up to almost 2 years if the parties are not able to reach an agreement.  It takes about 2-6 weeks from the date of filing your complaint for divorce, to receive summons from the court to serve on the opposing party.  Additionally, within in this time frame, the parties must exchange financial documents.  From that point, it is really up to the parties to negotiate a workable agreement.  If they are not able to, there will be a pre-trial conference to address the issues that have prevented reaching a settlement; this typically takes place within 6-10 months of you filing the complaint.  If you are still unable to reach an agreement, your case may go to trial, which generally can be 14 to 16 months after filing the complaint.

5. What are the steps in the divorce process?

Typically, one of the parties files a complaint for divorce with the Probate and Family court in the county where you last lived together if one of you still lives in that county, or if neither of you live in that county, then the county where either you or your spouse lives. Thereafter, the court clerk will send you or your attorney the complaint summons which will have to be served to your spouse.  Within 45 days of serving the complaint and summons, the parties are required to exchange three years of tax returns, bank  and investment accounts, health insurance information, four recent paystubs, any financial applications either of you have made in the past three years. The most important document you must accurately complete is the Probate and Family Court Financial Statement form.  Most of the financial decisions are based on that form, so it is very important to be accurate and fully disclose all of your income, expenses, assets and debt.  The court will grant a divorce based on the information provided in that form.

Once these initial steps are completed and the case issues have been identified, a Pretrial Conference will be held. This is a hearing held by the judge who will review case and provide insight as to how the matter should resolve.  Typically most cases settle after this hearing. Others may decide to go to trial so the judge can hear testimony of your case, review exhibits, and make a decision on all the contested issues, such as custody, support, and division of assets/debt.

This blog post is very abbreviated, and is intended to give a non-detailed overview. It is always better to consult with an attorney who can provide you with detailed advice unique to your specific situation. 

-Moira Daly

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