Below is an alphabetical list of legal terms commonly used in divorce in Massachusetts:
Alimony: Also known as Spousal Support. In Massachusetts, a judge may issue an order for temporary spousal support (alimony) during the course of a divorce. In a final divorce order, the court may also order either spouse to pay spousal support permanently. Both the amount and duration of the court ordered alimony may vary on a case-by-case basis, but is generally governed by the provisions of the Alimony Reform Act, enacted in 2012.
The court also has a right to order that neither party shall receive alimony payments. It is important to note that the tax implications of alimony payments are different from child support payments and should be considered in any final divorce settlement.
Alimony Reform Act, Massachusetts: The Alimony Reform Act of 2011 went into effect on March 1, 2012. Prior to the reform act legislation, Massachusetts Judges were not guided by and did not use a uniform formula to determine the amount of alimony to be ordered or the duration it was required to be paid. With the requirements of the Alimony Reform Act legislation, Judges are given guidance and a formula to help determine alimony in each case.
This legislation identifies different types of alimony: General term alimony, rehabilitative alimony (for no more than 5 years), reimbursement alimony, and transitional alimony (for no more than 3 years).
Arbitration: Arbitration is an alternative process for a divorce, allowing parties to reach a final resolution for their divorce with an impartial arbitrator rather than going through trial in the court system. The spouses will choose an arbitrator (who is an attorney with experience in divorce law) and that arbitrator will conduct a hearing in which the spouses provide documents, evidence, and sometimes witnesses to support their case. The arbitrator, just like a judge, will reach a decision which is final and legally binding. This is a different process than Mediation, which is a voluntary process and is only binding if the parties sign a divorce agreement.
Child Support: Child support is support payments made by the non-custodial parent to the parent who does have physical custody over the child. Massachusetts has a uniform system to reach a child support calculation, it is referred to as the “Child Support Guidelines.” Support orders may be ordered to continue for a child that is between the ages of 18 and 21, if that child remains principally dependent on the custodial parent for support. Child support may be ordered for a child between the ages of 21 and 23, only if that child is in a post- secondary/college program full time, and is dependent on the custodial parent for support during the school breaks. Generally, no child support is paid for a child who has completed post-secondary degree or reaches the age of 23, whichever is first, unless that child has special needs or other disability that creates a continued, unemancipated situation.
Child Support Guidelines: These are State guidelines that require one parent to pay the other parent child support based on a calculation and a percentage of their total income. The Child Support Guidelines are based
on factors such as the income of each parent, daycare costs, medical coverage, custody arrangements and several other factors. Representation by an experienced and knowledgeable attorney can ensure that you are not receiving too little support or paying too much in support.
Child Support Guidelines Worksheet: This is the general form that is referred to and filled out in order to calculate the child support guidelines that is required in all divorce cases involving children.
Custody: In Massachusetts, there is such thing as “legal custody” and “physical custody.” These custody responsibilities can be either shared (also called joint) between the parents or be held solely (also called primary) by one parent.
- Legal custody refers to the parent who has the rights and responsibility to make important decisions in the child’s life, such as decisions on education, religion, or medical needs.
- Physical custody refers to the parent that the child will primarily reside
Collaborative Law: This is an alternative solution to litigation and has the same qualities of mediation. However, unlike mediation, in which only the two spouses meet with the neutral mediator, this process includes the parties and each parties’ collaboratively trained attorneys and a neutral professional facilitator. Often described as a “team” approach, this process is voluntary and requires the commitment of both parties and their collaborative attorneys to resolve conflicts. The parties and their collaborative attorneys sign an agreement that, in the event the process breaks down, neither attorney for the parties shall engage in any litigation thereafter. In that situation, each party would need to engage separate litigation counsel and proceed as a contested matter.
Contested Divorce: A contested divorce is one in which the parties cannot agree to the terms of the divorce. This disagreement can relate to aspects like child custody, child support, division of assets, distribution of debts, and alimony.
Department of Children and Families: This is the agency in Massachusetts that seeks to protect children from neglect and abuse and make certain that children are able to live in a safe environment. It is responsible for programs and services such as foster care, adoption/guardianship, and family support and stabilization.
Department of Revenue: This is the agency in Massachusetts that enforces and seeks to achieve compliance with Child Support orders.
Division of Assets and Distribution of Debts: This is often referred together as “Property Division.” Property division is the dividing and distribution of all your assets and debt at the time of your divorce. Massachusetts follows the “equitable distribution” method when dividing property. This approach means that all property owned by the spouses during marriage (either individually or jointly) is subject to distribution. This may also include premarital assets, depending on the length of marriage and whether the assets were commingled into the other marital assets. Marital Assets includes real estate property, personal property, and intangible items of economic value such as stock options, 401K’s, and retirement pensions. The same goes for all debts that accrued during the marriage, such as mortgages, car loans, and credit card debts. The purpose is to achieve an equitable (fair) result, but it is important to note that does not always mean an equal distribution. All of the assets and debt that are subject to distribution are often referred to as “marital assets” or “marital property” and “marital debts”. Monetary value will then be assigned to each asset (by the parties if they agree or by the court) and then distributed to the parties based on several factors. These factors include:
- Age and health of each spouse
- Employment and employability of each spouse
- The amount of income of each spouse and the sources of that income
- Opportunity for gaining income in the future
- The present and future needs of any dependent children
- The contribution each party made to the acquisition, contribution, or appreciation in the marital property
Divorce: Divorce is the legal process for dissolving a marriage. In MA, a divorce is categorized as either a “no- fault” or “fault,” divorce, and can be contested or uncontested.
Equitable Division of Property: Massachusetts is an equitable distribution state (not a community property state) which means that all property, regardless of legal title or when/how it was acquired may be subject to division (equal or unequal).
Enforcement of judgments: When the probate and family court in your district enters an order, or judgment, it is projected that it will be followed. If a party to a divorce or child custody case for instance, fails to follow the court’s orders, the court can enforce the judgment against the party who has violated it. The procedure when this occurs is that the party not in violation will file a complaint for contempt noting the specific section of the agreement or judgment that has been violated. This process requires court intervention to ensure that orders, agreements, or judgments be followed.
Irretrievable Breakdown: This is the legal ground for a no-fault divorce. In Massachusetts, it is also referred to as a “1-A” divorce because they are granted by the court under Chapter 208, Section 1A of the Massachusetts General Laws. To obtain a divorce based on this ground, the parties must state a belief that the marriage has irretrievably broken down, meaning that there is no chance of reconciliation between the spouses. There is no need for detailed testimony of facts that lead to the irretrievable breakdown; simply that one exists with no hope of reconciliation.
Joint Petition: This is an uncontested divorce form that is filed jointly by both parties, along with all uncontested divorce documents, such as a separation agreement, financial statements, court statistical forms and the like. A Joint Petition signals that you are filing an uncontested divorce, which means you and your spouse have 100% agreement on all issues.
Judgment of Divorce Absolute: This just refers to the date that you are actually considered “legally divorced” and can now remarry. This date is not on the day of your final hearing, but rather a period of usually 90 days from that hearing (or 120 days, if you filed a “1A” uncontested divorce).
Judgment Nisi - this is the judgment that is issued at your final hearing date and thereafter your divorce is not final for another 90 days. Until that 90th day expires, you are still considered married and cannot remarry. If you and your spouse decide to reconcile during this 90 day period, you both must file affidavits requesting to stop the divorce. If you do nothing , your divorce will become final on the 91st day (a.k.a. judgment of divorce absolute).
Jurisdiction: This is a legal concept that gives courts the power to hear a case. A court needs both subject matter jurisdiction (the authority to hear the type of case at hand) and personal jurisdiction (the ability to compel a person to appear in court). In Massachusetts, the Probate and Family Court in the county where you and your spouse last lived together will have jurisdiction over your divorce. If neither of you live in that county, than jurisdiction will be in the county court where one of you lives at the time the complaint for divorce is filed.
Mediation: This is an alternative method to dissolve your marriage. This is a method that works for couples that desire an amicable divorce and can cooperate with one another. Couples can meet with a neutral third party (the “divorce mediator”) to discuss and work out the terms of their divorce. Unlike arbitration, mediation is a voluntary process which requires the cooperation and will to compromise by each party so a resolution that is binding can be signed by both parties. Unlike arbitration, where the arbitrator makes the decision, the parties create their own agreement based on their own negotiations. For more information about divorce mediation in Massachusetts click here.
Memorandum of Understanding: Basically, this is a document that sets out the terms of a divorce agreement or settlement negotiated by the parties. It is often used by parties that are seeking a no-fault divorce with the assistance of mediators. This document can be construed as you divorce agreement.
Paternity: Establishing paternity refers to determining the “legal” father of a child. This is significant to know because if you are determined to be the legal father of a child, you have significant rights and responsibilities to support and care for that child. The legal father may be required to provide child support or may have custody or visitation rights. A paternity action is brought usually when the child is born out of wedlock and the father has not signed a voluntary acknowledgment of paternity or is identified on the child’s birth certificate. The mother of a child or the putative father (alleged father) can bring this action, and if the court orders it, the putative father and child must submit to a genetic marker test.
Prenuptial Agreement: this is basically a contract between a couple who plans to marry and want certain rights and/or property protected. In Massachusetts, for a valid prenuptial agreement to be enforced, it must be fair and reasonable for both sides, and both parties must disclose all known assets. It is also referred to as an antenuptial agreement. More specifically, this agreement usually identifies the separate property of each party before the marriage and how it will be considered in the event of divorce or death of a spouse. It is intended to help the couple avoid disputes over the division of assets and debt in the event of divorce. It can also be used to safeguard the inheritance rights of children from a prior marriage.
Probate and Family Court: Massachusetts Probate and Family Courts have the authority over probate and family related matters. Family matters can include issues such as divorce, paternity, child support, and custody.
Probate matters can include issues dealing with wills, estates, and trusts. In the event an unusual matter arises that does not fall within family law statutes, then the probate court is also a court of “equity”, which is all other matters that may not be identified within Massachusetts statutes.
Property Division: Massachusetts is an equitable division state, unlike other states that may conform to traditional community property division. In Massachusetts, everything acquired during the marriage is a marital asset subject to division. Furthermore, assets (wholly or partially) brought into the marriage may be subject to division. That means that there is a presumption of an equal (50-50) division of all marital assets, but the courts also have the authority to order an unequal division (for example: 55 – 45 or 60-40, etc.) depending on many factors enumerated in the Massachusetts statute, known as Massachusetts General Law, ch. 208 section 34.
These factors include:
- length of marriage
- conduct of the parties during marriage
- age of each party
- health of each party
- station of the parties during marriage
- amount and sources of income of each party
- vocational skills of each party
- employability of each party
- estates of each party
- liabilities of each party
- needs of each party
- current needs of the minor children
- future needs of the minor children
- opportunities available to each party for the acquisition of capital assets
- contributions of each party to the acquisition, preservation or appreciation of their respective estates
- contribution of each party when one is a homemaker
Marital property that is subject to distribution at the time of divorce can include a whole host of things. It includes real property, such as the family home; personal property, such as jewelry; and intangible items of economic value, such as stock options, 401K, retirement pensions, workers comp payouts, lottery winnings, etc. Whether certain assets are transferred to one spouse or sold is usually matter of strategy between an attorney and client.
Postnuptial Agreement: This type of an agreement is made by spouses during their marriage as opposed to prior to marriage like a prenuptial agreement. It is way for parties to resolve financial differences so that divorce is not contemplated. The goal is to restore harmony in the marital relationship. Because the agreement must comply with strict legal standards in order to be enforceable, spouses will often seek the service of a mediator or experienced attorneys to ensure the validity of their agreement.
Qualified Domestic Relations Order (QDRO): This is an order from a court as a result of a divorce judgment/agreement, which directs the plan administrator to divide a retirement plan or assign rights to the spouse of the plan participant. This allows a retirement account to be split-up without any income tax or penalty impacts.
Restraining Order: It is important to understand that restraining orders in matters of family law are much different than the usual “personal” or “209A Restraining Order, described below. In Massachusetts, in every divorce case there is an automatic restraining order regarding assets upon filing the divorce complaint. This type of restraining order is enforced to prevent either party from selling, transferring, encumbering, concealing, assigning, or removing any property, whether it’s real or personal, belonging to or acquired by either party.
You should be aware of this if you have just filed for divorce or are contemplating divorce, because violating the terms can result in sanctions against you.
Restraining Order- aka 209A Restraining Order: A 209A Restraining Order can also be referred to as an “abuse prevention order” or a “protection order.” It is designed to provide legal protection to victims of domestic, physical or sexual abuse. For instance, the court may order the abuser not to have contact with you directly or indirectly, that the abuser leave and stay away from your home or work place, and in some instances temporary custody of children may be awarded to you. This type of restraining order can be obtained against a spouse, a former spouse, a relative, a current or former household member, or someone that you’ve had a serious dating relationship with. You should understand that this order is civil in nature and the violation of it is considered criminal. For example, if you are filing a 209A restraining order against your former spouse, he or she will not immediately go to jail, yet if a violation occurs and then that person is convicted, he or she may face up to two and a half years of jail time or a fine of up to $5,000, or both.
Separation Agreement (divorce agreement): A separation agreement is a contract between you and your spouse. It may be merged into your divorce judgment or it may “survive” as an independent contract between you and your spouse. It may have some terms that merge and some terms that survive. This is a complicated area of the law and you should consult with an attorney to obtain an understanding how merger and survival will impact the future interpretation of your agreement. In general, the separation agreement will address the financial concerns surrounding your divorce, such as the division of your assets and debt, spousal support (a.k.a. alimony), child support, and custody. Courts will review the separation agreement to ensure it is fair and not the result of fraud or duress.
Temporary Support (Alimony): Alimony can be ordered while your divorce is pending.
Uncontested Divorce: An uncontested divorce is when both parties are in complete agreement regarding all matters pertaining to their divorce in the separation agreement.
Before an uncontested divorce can be finalized, a separation agreement (also known as a divorce agreement) must be written and include all relevant issues for the case such as, child custody and support, a parenting schedule, college education cost allocation, division of assets, division of debt, alimony, health-related insurances, life and disability insurances and tax consequences. It is important that the agreement also include language to direct the court and parties it its future interpretation and enforcement.
In addition to the separation agreement (divorce agreement), there are other documents that must be included with the filing: a Joint Petition for Divorce (court form), affidavits of irretrievable breakdown for each party; financial statements completed by each party; parenting course completion, if minor children are involved; court statistical form; and a certified copy of your marriage certificate.