Back to Basics: Ways to Divorce in Massachusetts

In Massachusetts, there are several potential ways to get a divorce. The way you choose largely depends on whether you and your spouse agree on the terms of your divorce and your personal preference. If you are confused about your options, you can talk to a Massachusetts divorce attorney for assistance.

Uncontested Divorce

An uncontested divorce in Massachusetts, or 1A divorce, is one in which the parties agree on the material terms of their divorce. For an uncontested divorce, there must be a complete agreement by the spouses of all material terms (by the time they file the separation agreement), including:

  • Property division
  • Division of debt
  • Health-related insurance
  • Life and disability insurance
  • Child custody
  • Parenting schedule
  • Child support
  • Alimony

To have an uncontested divorce, the spouses must put this information in writing, in the form of a separation agreement, together with other required forms. They must also include language about how their agreement should be interpreted by the court and how it can be enforced.

The spouses do not have to necessarily agree on everything immediately in order to have an "uncontested divorce." Rather, they just need to get there before they can move forward and file their agreement with the court. They may be able to reach a settlement by using one of the following methods:

Negotiation

The spouses may be able to discuss the divorce on their own and reach an agreement. They may each hire an attorney to draft this agreement, or one party may choose to represent themselves. Alternatively, they may communicate through their respective attorneys who are able to hammer out a settlement. This is often a preferred method for spouses that feel detailed and direct communication about their divorce may be emotionally challenging.

Collaborative Law

Collaborative law is an approach to divorce that Massachusetts permits spouses to get divorced on their own terms. If you choose the collaborative law approach, you and your spouse will each hire a certified collaborative law attorney.

In collaborative law in Massachusetts, each spouse is represented by his or her own attorney that looks out for the spouse’s interests. The goal is to reach an amicable settlement outside of court. This approach allows the parties to communicate more openly and work together without the threat of litigation.

To participate in collaborative law, each spouse must have an attorney who is certified in the field of collaborative law. The attorneys are vested in helping the spouses reach an amicable decision on how to resolve issues in their divorce. The lawyers will also have private meetings with their clients to identify possible problems and solutions. If the spouses are able to reach an agreement, the attorneys will prepare a written settlement agreement and present it to the court for approval.  If the spouses are unable to reach a settlement, the attorneys who represented them during the collaborative law process must resign and the spouses will have to start over with a different attorney.

During collaborative law sessions, the spouses will try to work out details regarding the major issues in their divorce, such as property division, child custody, child support, and other issues. The spouses may also involve other professionals throughout this process, such as counselors, accountants, appraisers, or others.

Mediation

Another option to resolve a divorce in an amicable manner is mediation. Mediation is different than collaborative law because it is led by a neutral third party (the mediator) who helps guide the parties to settlement. The mediator does not impose any decisions on the spouses, and cannot give either party legal advice. The mediator does not represent either party. Instead, his or her role is to facilitate communication and help the parties align their interests so that they can reach a settlement on their own terms.

Spouses may hire a mediator of their choice to assist them and often split the cost between them. During mediation, you and your spouse can make decisions regarding arrangements for your children, the distribution of your property, and financial support. One of the major benefits of mediation is that the parties can reach a customized solution that fits their particular needs instead of allowing a court to make decisions on their behalf that may not be the best solution for their family. In mediation, spouses are able to retain control over the outcome of their divorce and avoid surprises. Mediation is a voluntary process and the parties do not have to agree on any terms that they are not comfortable with.

Many couples are able to reach a satisfactory agreement through the process of mediation, saving them time and money and avoiding the acrimony that often follows litigation. If the spouses are able to reach an agreement, this agreement is written up as a separation agreement, and can be filed with the other necessary Massachusetts divorce documents. The spouses can also consult with their own attorney to learn about their legal rights and how particular decisions will affect them, prior to signing. In fact, obtaining attorney advice throughout the course of your mediation, and prior to signing your agreement is always recommended.

Process of Getting an Uncontested No-Fault 1A Divorce

Generally speaking, a Massachusetts couple will need to prepare all of the necessary documents, including

  • A joint petition for divorce
  • The separation agreement
  • Affidavits of irretrievable breakdown of the marriage sworn by each spouse
  • Long for and/or Short Form Financial statements (you and your spouse each need to complete one)
  • Certified copy of your marriage certificate which you obtain from the Registry of Vital Records or your city or town where you got married
  • Record of Absolute Divorce (form R-408)
  • Certificate from completion of a court approved parenting course
  • Affidavit disclosing Care or Custody
  • Child Support Guidelines Worksheet

1B Contested Divorce

In a Massachusetts contested divorce, you and your spouse do not agree on one or more material terms of your divorce like property division, child custody or support. You may have tried other methods to resolve your case, such as negotiation or mediation, but ultimately, you have reached an impasse. The next step is a contested divorce, or litigation.

Litigation

Litigation begins by filing a Complaint for Divorce in court. This complaint outlines your reasons for seeking a divorce and asks the court for specific relief, such as granting you a divorce. Your complaint must be filed in the probate and family court in the county where you and your spouse last lived together during your marriage if at lease one of you still lives at that particular residence. If neither of you live there, you file the complaint in the probate and family court in the county where either of you live.

Once you have filed the complaint with the court, the court clerk will issue a summons. The summons and complaint must be served on your spouse either by a constable or disinterested party. Please note you cannot serve your spouse yourself! Your spouse has 20 days from the date of being served to file an answer for divorce. They may also file a counterclaim for divorce in which they set out their own request for divorce and relief.

Within 45 days of the date of service, the spouses are supposed to exchange necessary financial disclosures, including your Massachusetts financial statement (Rule 401). A financial statement is important because it is an overview of your current financial situation, and can help determine division of assets and division of any debt, as well as child support and spousal support,

A financial statement reflects all of your income, expenses, assets and debt, and will be updated accordingly as your divorce proceeds. This "snapshot" of your financial situation can be helpful to a judge in assessing the lifestyle you and your spouse enjoyed during your marriage, as well as the lifestyle you and your spouse provided for your children during your marriage. Why is this important? Well, it provides insight into whether you or your spouse need financial support from the other spouse, as well as showing the judge your assets and liabilities, so that they can determine an equitable division accordingly.

Seek Legal Assistance

If you would like to learn more about possible ways to file a divorce in Massachusetts or how a lawyer can help, contact Mavrides Law today.

By: Julia Rodgers, Esq.

Julia Rodgers is an attorney and the firm's Business Director.  You can read her full bio here: Julia Rodgers' Bio

To speak with a lawyer about a prenuptial agreement, contact Mavrides Law in Boston, MA. To schedule an in-depth initial consultation, call 617-723-9900 or contact the firm at info@mavrideslaw.com

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