Massachusetts Divorce Basics

How do I get a divorce?

First, you and your spouse need to determine which type of proceeding is most appropriate for your circumstances. You can get a divorce in Massachusetts by filing a uncontested divorce along with your spouse or by filing a contested divorce on your own.

To file for an uncontested divorce, both spouses must be in agreement on all issues related to the divorce. This can be accomplished by entering into a separation agreement which describes in detail how any children will be raised, how any property/debt will be divided, and whether one spouse will financially support the other going forward. An attorney can help you negotiate the terms of the separation agreement, complete the necessary forms, and file the uncontested divorce petition.

However, if your or your spouse are unable to agree on some or any of the issues related to your divorce, then you will have to proceed with a contested divorce. This process usually begins when one spouse files a Complaint for Divorce, along with any necessary Motions. The parties will then have to exchange Discovery Documents, attend preliminary Hearings and, if necessary, proceed to Trial for the Judge to determine any remaining issues.

Do I need to hire a lawyer?

Everyone has the legal right to represent themselves. However, it is generally a good idea to hire an attorney given the numerous technical, procedural, and substantive issues which will need to be addressed. A simple mistake or an issue which is overlooked can easily cost you thousands of dollars in the long run. An experienced attorney will properly present the issues to the court, and can also draft appropriate language in a Separation Agreement so that all of your rights will be properly protected.

How much will my divorce cost?

The total cost of a divorce will generally depend on how much you and your spouse can agree. For an uncontested divorce, the filing fee is $215 and our legal fee ranges from $750 to $1,000.

For a contested divorce, the initial filing fee is $220, but there can be additional costs for service of process, subpoenas, depositions, trial preparation, and expert witnesses. Legal fees for contested divorces tend to be more open ended because it is very difficult to determine from the outset how much time will be spent on your case. Our legal fee is billed at an hourly rate for the time spent on your case, and the initial retainer is based on the specific facts and circumstances of your case.

How long will it take to get a divorce?

This will also depend on whether you and your spouse can agree on the issues. If the two of you can enter into a comprehensive separation agreement and file together for an uncontested divorce, then you can obtain a final hearing and judgment within 30 to 90 days. However, if the parties cannot agree on the issues, a contested divorce can take anywhere from 6 months to over 2 years.

If you want your divorce to move forward quickly, we can help you negotiate a fair agreement on the issues. If your spouse is being unreasonable and is not willing to negotiate in good faith, we will help you progress through the contested track quickly through targeted discovery, clear temporary orders, and an expedited trial.

Massachusetts Child Custody And Support

Who will get custody of my children?

Child custody disagreements are usually the most contentious in Family Court. Unlike property division, alimony, or child support, you cannot put a dollar amount or number on the ability to raise and parent your own children.

When parents are not able to agree on how to raise their children, the Court is forced to decide who will make decisions for the children (legal custody) and where the children will live throughout the year (physical custody). The Court ultimately decides what is in the child’s best interests and develops a comprehensive detailed parenting plan.

What is the difference between legal and physical custody and how can they be shared?

Physical custody simply refers to the parent with whom the child or the children reside. Legal custody on the other hand, refers to which parent will have the right to make major decisions on behalf of the child or children. Accordingly, a parent who has legal custody will have the right to determine all major life decisions, including elective major medical procedures, religious upbringing, school, etc. When parties have shared legal custody, also known as joint legal custody, the parties must consult and agree on all major life decisions for the children.

How is child support determined?

In Massachusetts, the courts utilize Child Support Guidelines in order to determine the level of child support which would be appropriate in various situations. The Child Support Guidelines are amended from time-to-time and new Child Support Guidelines recently went into effect on January 1, 2009. In setting a Child Support Order pursuant to the Guidelines, the court will consider child care costs, the number of children, cost of medical insurance for the children, the amount of parenting time expended by either parent, and prior court Orders and obligations affecting either party. Generally, the court is required to utilize the Guidelines; however, in certain circumstances the court may deviate from the Guidelines by entering specific written findings. In some situations the Child Support Guidelines do not apply. However, when the Guidelines do apply the court will utilize a “Child Support Guidelines Worksheet”.

How is visitation determined?

The Massachusetts courts generally encourage frequent and continuing contact between children and both parents. The children’s ages and the parents’ schedules are also considered. Visitations might include day time visits, overnight visits, weekend visits, school and summer vacation visits, weekday dinner visits and telephone visits. Usually a parenting plan will take into consideration all of the above in order to fashion a visitation arrangement which will be in the children’s best interests and which will afford the children an opportunity to spend as much time as possible with both parents.

Notwithstanding the above, when there has been abusive, violent, or neglectful behavior by a parent towards a child, there may be no visitation, or visitation may be required to be supervised. Sometimes when a parent, for whatever reason, has not seen a child for a lengthy period of time, the court may require that the initial visits be supervised and then reviewed periodically with the goal of gradually expanding and normalizing visits.

How can I enforce a Court Order for child support or visitation?

Once the Court has made a Temporary Order or a Permanent Order, or Judgment, both parties are obligated to comply with the Order. If one side does not comply with the Order, the other side can file a Complaint for Contempt seeking enforcement of the Order, as well as reimbursement for attorney’s fees. Contempts may be filed to enforce all kinds of Court Orders, including but not limited to child support, alimony, visitation, and property division.

What if the circumstances have changed since the last Court Order or Judgment?

If there has been a material or substantial change in the circumstances, then a Complaint for Modification may be filed, after which the Court can “modify” the previous Order. Modification proceedings are frequently filed in order to obtain more child support, as a result of the obligor obtaining employment or receiving substantially greater income. Likewise, Modifications can be filed in order to pay less child support if there has been a significant reduction in income. Based upon the circumstances, Modifications can also be filed to increase or decrease visitation with minor children. Modifications are also frequently filed years after the divorce in order to determine a parent’s obligation with regard to payment of college tuition.

Massachusetts Property Division And Alimony

How will our assets and property be divided?

Assets or property held jointly in both parties’ names, held separately in either party’s name, as well as assets acquired prior to the marriage by either party, are all considered “marital property” and must be considered by the court in fashioning a property division. In order to equitably divide assets, the court will need to determine and identify the assets, and then determine the Fair Market Value of each asset. Accordingly, if the parties are unable to agree upon the value of their assets, appraisers are frequently utilized to appraise various assets such as real estate, business interests, and retirement plans. Appraisers can also be utilized to determine the values of other assets as well.

Assets may include real estate, motor vehicles, investment properties, bank accounts, 401K retirement accounts, shares of stock, bonds, furniture, stock options, royalties, jewelry, etc.

The division of assets and property is generally determined by Massachusetts General Laws c. 208, §34, which provides that marital assets are to be divided “equitably”. The Massachusetts “Equitable Division” Statute is quite different than a Community Property State such as California, where virtually all assets which have been acquired during the marriage are generally divided equally. If the parties are unable to determine for themselves how their property is to be divided, then the court will conduct a trial and will consider:

a. The length of the marriage;
b. The conduct of the parties during the marriage;
c. The age, health, station and occupation of each party;
d. The amount and sources of income of each party;
e. Vocational skills and employability of each party;
f. The estate of each party;
g. The liabilities and needs of each party; and
h. The opportunity of each party for future acquisition of capital assets and income.

In addition to the above, the court may also consider:
1. The contribution of each of the parties in acquisition, preservation, or appreciation in value of their respective estates; and
2. The contribution of each of the parties as a homemaker to the family unit.

Am I entitled to (or will I have to pay) alimony?

Unlike child support, a party does not have an entitlement to receive alimony from a spouse. The court will look closely at the overall circumstances of the marriage and will apply the various criteria set forth in G.L. c. 208, §34. Alimony essentially is based upon one party’s need to receive alimony, and upon the other party’s ability to pay alimony. Alimony will generally be appropriate in a long-term marriage in which there is a great disparity in the incomes of the two parties.

Massachusetts Estate Planning Basics

Who needs a will?

Everyone over the age of 18 should have a basic will at minimum.  Those in the greatest need are those who have experienced a major life change, such as:

(a) Marriage or divorce;

(b) Death of a family member or beneficiary;

(c) Substantial change in asset value;

(d) Birth of a new family member;

(e) Move to another state;

(d) Acquisition of new property; and

(f) Change in tax laws since last estate plan.

What happens if a person dies without a will?

If a person dies intestate, his or her property will be distributed according to a statutory formula, known as the laws of “intestate succession.” Unfortunately, these laws are inflexible and make no exceptions for those in unusual need.

Does a will enable a person’s estate to avoid probate?

No. However, it can significantly reduce the cost and delay of the probate process.

How can I make a will?

The laws of each state establish the formal requirements for creating a valid will. In Massachusetts, the technical formalities required for the execution of a will must be followed precisely.

The drafting of a will can be complex and involves the making of decisions requiring professional judgment. It is best to find a practicing estate planning lawyer to draft your will. Hand-written or fill-in-the-blank kits may not suit your particular needs and could, in fact, create more problems in the future.

How much does a will cost?

Although a professionally prepared will may cost a few hundred dollars, it can save thousands of dollars for your estate. Please refer to the Fees and Payments page for a list of our prices.

What is a health care proxy?

Under Massachusetts law, if you are competent and at least 18 years years old you may appoint another person – called your agent – to make decisions about your health care if you should become unable to do so. The document in which you name this person is called a health care proxy.

How does a health care proxy work?

The person you choose as your health care agent will be called upon to make decisions about your medical care only if your health care provider determines that you are unable to make or communicate such choices for yourself – for example, if you were unconscious, paralyzed or mentally incapacitated. Your agent is required to make decisions consistent with your religious or moral beliefs, including any instructions you may have put in a living will.

What is a Power of Attorney and what is it used for?

The Power of Attorney that is most commonly used is known as the Durable Power of Attorney (DPA). The DPA allows you to carry out your business and financial affairs if you become disabled by granting broad powers to an appointed agent. By doing so, a person can avoid having the probate court appoint a guardian or conservator to make decisions for them when they become disabled (which is very expensive and time-consuming).

What is a trust?

A trust is a legal relationship under which one individual (the “donor” or “settlor”) provides for the transfer of property to another (the “trustee”), who holds and manages the trust property for the beneficiaries.

What is the purpose of creating a trust?

Trusts often are created for one or more of the following reasons:

(a) Avoiding public disclosure of assets and financial data;

(b) Consistent and uninterrupted management of assets before and/or after the donor’s death, illness or disability;

(c) Preserving assets by preventing the beneficiaries, or their creditors, from gaining direct access to the trust property;

(d) Reducing income and/or estate taxes; and/or

(e) Eliminating or lessoning costs and delays associated with probate administration.

When should a person create a trust?

You should only create a trust when there is a need or specific advantage, such as:

(a) Relief from the burdens of financial management;

(b) Creation of a flexible estate plan and minimizing estate taxes;

(c) As a vehicle for lifetime gifting;

(d) Providing support for an elderly or disabled family member;

(e) Shifting income and tax liability for a period of time;

(f) Facilitating charitable planning; or

(g) Avoiding public disclosure of assets in the probate process.

What is the lawyer’s role in creating a trust?

Since a trust is part of a comprehensive estate plan, it should be established only after the most careful consideration has been given to its advantages and disadvantages. A lawyer can help in several ways, including:

(a) Deciding whether a trust will meet your estate planning objectives;

(b) Preparing the trust documents and explaining how it will operate and what the tax consequences will be;

(c) Completing the details involved in funding your trust during your lifetime as well as the best way to rearrange your property so that it reaches the trust with a minimum of delay and expense at your death;

(d) Selecting the appropriate trustee and reviewing with you the trustee’s performance to insure that the trustee’s duties are properly carried out.