Massachusetts divorce details
Uncontested VS Contested Divorce in Massachusetts
In Massachusetts, you may contest your divorce regardless whether it is fault or no-fault. There is even a special type of divorce - Contested no-fault (1B). What’s the difference?
A Contested divorce occurs when the spouses can’t reach an agreement on some important decision of their case or just don’t want to try. Although it can be both fault and no-fault, more often, contested divorces imply the fault of one of the spouses, some misconduct, that causes a bad relationship and disability to negotiate, and also, that the guilty spouse does not agree to a divorce. A Contested divorce is hard to imagine without an attorney, so, surely, it takes a lot of money as well as time.
So, if your case is no-fault one it’s usually more rationally to file for uncontested divorce. Uncontested no-fault divorce (1A) is the easiest way to get divorced in MA, but the spouses must prepare in advance. They should write and sign the mutually beneficial Separation Agreement and file the Petition for divorce jointly, as well as attend the final hearing together.
Uncontested Divorce in Massachusetts
An Uncontested divorce in Massachusetts doesn’t demand any waiting period after the filing because of the joint petition. After filing the forms you and your spouse can represent your case before the court in the shortest terms. The final hearing in case of uncontested divorce is usually a brief and calm process. The judge just needs to read your Separation Agreement and to conclude that its terms are reasonable. The divorce judgement is entered automatically 30 days after the hearing.
Grounds for Divorce in Massachusetts
As in other states, to get divorced in Massachusetts you must choose a legal ground, which will determine the whole process of your divorce case. In the Bay State there are both fault and no-fault grounds.
No-fault ground for divorce in MA is “Irretrievable Breakdown of Marriage”. This means that no one is to blame, but both spouses want to terminate the marriage. You can file for divorce under this ground jointly with your spouse (1A), or as a sole petitioner (code 1B).
Fault grounds for divorce in MA are:
- Cruel and Abusive Treatment (physical or emotional).
- Desertion for at least a year.
- Drug/alcohol addiction.
- Gross or wanton and cruel refusal or neglect to provide suitable support.
- Impotence (as well as Adultery, this ground is used very rare now).
- Sentence of Confinement in a Penal Institution of 5 years.
All the fault grounds are needed to be proved before the court.
Massachusetts Residency Requirements to File for Divorce
To be eligible to file for divorce in Massachusetts you must meet the certain residency requirements. The Massachusetts residency requirements are quite simple for the couples who can state that the ground for their dissolution occurred in the state. In that case, one of the spouses must currently reside in Mass.
If the ground for divorce occurred out of the state, at least one of the spouses must be a resident of Massachusetts for a 1 year before filing the petition.
You as a petitioner should file for divorce in the county where your reside.
How to File for an Uncontested Divorce in Massachusetts?
Massachusetts Uncontested divorce also called the No-Fault 1A Divorce, is quite a straightforward process which nevertheless demand you to be well-organized and prepared. Here are the main steps you need to take:
- Discuss with your spouse the most important terms of your divorce case. All the children-related issues, a division of property, alimony and other terms that are important for your couple must be clarified and decided voluntarily. Seriously, it’s the main step. Please negotiate a lot. With the help of a mediator or independently, but don't miss any detail. Write a Separation Agreement. Then it must be signed by both parties and notarized.
- File the Joint petition for divorce (and other documents depending on your case) at the Registry office at the Probate and Family Court. Pay the filing fee.
- As you file for divorce as co-petitioners, there is no need to waste time on serving your spouse. The final hearing may be appointed in the shortest terms when all the paperwork is submitted. Both spouses must attend the final hearing and answer some judge’s questions about their Agreement and so on. The divorce judgment is entered 30 days later.
Notice! In Massachusetts, you may file the forms by mail. You may send the completed paperwork and the filing fee to the relevant Probate and Family Court.
Do-It-Yourself Divorce in Massachusetts
DIY divorce means a self-representation before the court. Nowadays, even attorneys agree that there are a lot of cases when people are really capable to represent themselves without a legal assistance.
If the divorce case is simple enough - if the spouses have not a lot of property or they have not children, so they don’t need to decide the most difficult divorce issues - the case turns out into grabbing and completing the correct forms. So, Massachusetts No-fault 1a divorce is the easiest way to divorce in the state and it can be handled by the spouses themselves in most cases.
Just don’t rush with your separation agreement, carefully assess your capabilities, and probably you can save a lot of money if you're good candidates for Do-It-Yourself divorce.
How Much Does an Uncontested Divorce Cost?
In Massachusetts, an uncontested no-fault divorce may cost about $215 (the cost of initial filing fee for divorce case). The additional expenses may depend on your case and its peculiarities.
Some people prefer to hire an attorney even for an uncontested divorce. Plenty of lawyers have the “flat fees”, that means that for uncontested divorce they charge a fee per case, not per hour as usual. The cost of uncontested divorce with a help of attorney is from $1500 in Mass, which is much less than a price for contested case, but still much more than $215.
How Long Does it Take to Get Divorced in Massachusetts?
If your divorce is uncontested and you file a Joint petition, you definitely save some time for serving the papers. However, Massachusetts divorce still is not famous for its rapidity, because of the "Nisi period" automatically entered after the divorce order.
The judgment nisi is a period after which the divorce is actually final and the former spouses are allowed to remarry. The nisi period is 90 days, and it’s entered automatically after 30 days after the divorce order is signed.
Papers & Documents You Need to Get a Divorce in Massachusetts
What the forms are necessary for your particular divorce case depends on the divorce type and its peculiarities. As this article is dedicated to uncontested divorce, look at the basic set of forms, which are needed to be filled if you file for No-fault uncontested divorce (1A divorce, as it’s called in Mass).
- Separation Agreement. The agreement must be already prepared at the moment of filing the Petition and other forms.
- Joint petition for divorce (Joint Petition for Divorce under G.L. c.208, Section 1A - CJD-101A).
- Joint affidavit of irretrievable breakdown (must be signed by both spouses).
- Record of Absolute Divorce(R-408).
If the couple has minor children the following papers are also must be completed:
- Certificate of Parent Education Program (all the divorcing couples should attend this program if this requirement wasn’t waived by the court).
- Affidavit of Care and Custody (OCAJ-1).
- Child support guidelines worksheet (CJD-304).
How to Serve Your Spouse in Massachusetts
In Massachusetts, a pure uncontested no-fault divorce begins with a Joint Petition, so it does not assume any serving process at all.
But if you file for a so-called No-fault 1b divorce (no-fault, but contested divorce) you must serve your spouse with the copies of the Petition, Summons, Tracking notice by hiring the sheriff or constable. Filled "Return of Service" form must be the evidence that the delivery succeeded. Notice, that you should pay a fee for this service.
Online Divorce in Massachusetts
Despite the Massachusetts divorce can be a quite straightforward process, the spouses still need to file the forms at the clerk's office and at the Registry office, as well as attend the final hearing. So, what is called online-divorce in the US is actually the divorce forms preparation online, which is, however, a very important part of the process.
If you file for uncontested divorce and want to handle it by yourself the preparation of divorce papers is your essential job. To save some time and feel more confident you may use an online divorce service like this one.
We can prepare the forms for your certain case, taking into account all the important details. You will only have to sign the ready-made documents. The terms are short, and the price is low. For $149 you can stop to worry about the divorce paperwork and be sure that the MA court will approve the forms.
Rules for Child Support and Visitation in Massachusetts
Under the Massachusetts family law, both parents are responsible for their children’s welfare and upbringing.
Nevertheless, the child custody, visitation, and support arrangements are usually customized due to the particular case’s terms, so no one can force you to share the parental responsibilities with the partner whose influence may be harmful or even dangerous for the child. Parents' and children's wishes are taken into account along with the numerous factors which try to determine the best interest of the child.
Generally, there are two types of a child custody - physical and legal.
- Physical custody refers to residence of a child, it determines who is supervise the child in everyday life, and who spends the significant amount of time with the child.
- Legal custody means the decision-making power on some major choices in the child’s life.
Both physical and legal custody can be joint or sole. If the physical custody is joint, that means that the child can have periods of residing with each parent. If the physical custody is sole the non-custodial parent has their visitation rights.
As for child support, both parents should spend an approximately equal amount of money, but usually, the custodial parent is supposed to spend the money directly on the child and the non-custodial parent has to make periodic payments.
The state of Massachusetts provides the Child Support Guidelines, which helps to determine an acceptable amount of a child support, taking into account both parents’ income and other conditions. Notice, that parents may agree on other amount and the court will approve it if it meets the child’s best interest.
Rules for Spousal Support in Massachusetts
Each spouse may ask for a spousal support (alimony). The court must estimate whether the request is fair - whether the first party is really can’t support themselves and whether the second party is able to pay. In Massachusetts, there are three types of alimony:
- Rehabilitative. This type of alimony is ordered for a certain time, which is needed for the receiving spouse to become self-sufficient.
- Reimbursement. One-time or periodical payment with a certain purpose - to compensate for costs that earlier were spent by the receiving spouse to help the paying spouse to complete education or to improve professional skills.
- Transitional. One-time or periodic payment in order to help the spouse with a lower income to begin a new life (for example, to move, to change a job etc) after the divorce.
- General term alimony. The long-term payment to the spouse who can’t support themselves for some reason. The length of this alimony terms is directly proportional to the length of the marriage. For example, for the marriages between 5 and 10 years alimony can’t be ordered for more than 60% of a number of months of the marriage. Between 15 and 20 years - not more than 80%.
Division of Property in Massachusetts
Massachusetts is a state of equitable distribution, so the spouses’ property must be divided in an equitable (not equal) way, according to the numerous factors that can affect a Family court’s opinion about what is fair in a certain situation. Among these significant factors are the length of the marriage, each spouse's income and employability, their age, health condition and special needs, and other.
Unlike other states, in Massachusetts, there is no difference between separate and marital property. No matter when the property was acquired - prior to or after the marriage, all of it should be divided between the parties according to equitable distribution principals.
Division of Debt in Massachusetts
The debts are considered to be the part of a property, so the spouses’ debts are divided under the same equitable distribution rules as the assets and estate are.
The court considers all the conditions of the situation, takes into account the each spouse’s conduct, the circumstances under which the debt was accumulated, then the court assigns a monetary value to the debt and decides who should be responsible for paying it. The liability for paying the debt may be split between spouses or ordered to the one of them.
Divorce Mediation in Massachusetts
Divorce mediation is a way to collaboratively reach an agreement on the most important terms of the case out-of-courthouse. Sometimes, the spouses who hire attorneys and contest the case attend mediation too, but the major gist of mediation is to avoid the litigation and to sign a mutually beneficial separation agreement within uncontested divorce.
During the mediation session, the spouses meet and negotiate such issues as child custody, support, parental responsibilities, a division of property, and alimony under the guidance of a qualified mediator. A mediator doesn't order something like the judge does it, but he/she may predict some of the judge’s decisions and so help the couple to settle their liabilities in a most favorable way and to keep the smooth relationship.
How to Divorce a Missing Spouse in Massachusetts
If you want to divorce but can’t contact your spouse, the Divorce by Publication takes place. Divorce by Publication is a type of formal serving your spouse with a Petition in a case when you can’t locate your partner.
- In order to be eligible for Divorce by Publication you must convince the court that the spouse is really can’t be found, while you did your best to locate him/her. You must list all your efforts in an Affidavit of Diligent Search and submit this form to the court.
- If the court approves it, you are ordered to publish the notice about your case within a local newspaper. After that, your partner is assumed to be officially served with the paperwork (informed about the divorce case).
- And after the certain time if there is still no answer the divorce can be granted by default, without the second party’s participation.
Divorce by Publication typically takes about three months, and its cost varies greatly depending on the area. In big cities, the cost of a newspaper publication can be rather high.
Default Divorce in Massachusetts
Divorce by Publication is not the only example of a default judgment in action. Generally, a default judgment is entered in any case, when the person was informed about some legal case against him/her but fails to answer the Petition on time.
In Massachusetts, if your divorce is uncontested you don't need to serve your spouse at all, as you file for divorce as co-petitioners. But in the case of contested divorce your spouse has 30 days to respond the petition (if he/she resides in MA), and 60 days (if he/she resides in another state). The Default Divorce can't be requested before this term passed.
Annulment of the Marriage in Massachusetts
An Annulment declares the marriage invalid from the very beginning, the court states that the marriage had never existed in the eyes of law. Of course, you can’t get an annulment just because of your wish. There are special legal grounds to annul the marriage.
In Massachusetts, all the marriages that are eligible for annulment can be defined as void or voidable. What’s the difference? The void marriage is an illegal and prohibited marriage that never can be recognized by the state law.
Voidable marriage has some background, reason to proclaim such a marriage as void, but the spouses can decide themselves whether to take this ground into account or remain married.
- Incest, Consanguinity, and Affinity.
- Mental incapacity to consent to the marriage (mental illness, alcohol/drug influence at the time of wedding etc).
- Underage marriage (younger than 18).
- Fraud marriage (some deception was involved in getting married).
Legal Separation in Massachusetts
Massachusetts family law doesn’t have such a concept as Legal Separation, but in some cases, the spouses who live apart but don’t want or for some reason can’t get a divorce may file for Separate Support.
The Separate Support may be requested if one of the spouses refuses to provide support without the court order, or if the spouses live apart for some justifiable cause.
Under the Separate Support all the children-related issues, alimony, and property division are settled.
Same-Sex Divorce in Massachusetts
Same-sex marriage and respectively the Same-sex divorce is recognized in the state of Massachusetts since 2004. This made the Bay State the first US state and the sixth jurisdiction over the world to recognize the LGBT rights to marry.
Now, in order to divorce, same-sex couples should take the same steps as heterosexual ones, the rules are equal for everyone.
The only difficulty that still arises is that the legal definition of “length of marriage” may be controversial and incorrect for those couples who have lived as spouses long before they finally could legally marry. For these couples, the collaborative divorce and mediation are the good options, as they initially take into account all the unique details of the case.
Military Divorce in Massachusetts
As in other states, in Massachusetts, all the military members are protected from the default divorce by the federal law (the Soldiers and Sailors Civil Relief Act). Under this law, the divorce proceeding may be postponed for the whole time the service member spouse is on active duty plus 60 days after that. It’s important that every spouse must have their right to be properly served with the divorce paperwork and informed about the case.
Another law called the Uniformed Services Former Spouses’ Protection Act states that the military spouse’s pension can’t be divided during the divorce unless the spouses were married longer than 10 years (while a military spouse has been active duty military).
How to Divorce a Spouse in Jail in Massachusetts
There is no some special rules on how to divorce an inmate spouse, but you definitely are not able to file as co-petitioners. You should file the divorce forms and ask the Sheriff to deliver the packet to your spouse. If your ex-partner wants to contest the case you’ll need an attorney, but if he/she is OK with all the terms outlined in the Petition, you may agree on default divorce.
Massachusetts Divorce Filing Fee
When you start a divorce action and file the Petition with the court you must pay an initial fee for divorce. A divorce filing fee is a cost of court services.
In the state of Massachusetts, a divorce filing fee is $215. If you need to serve your spouse with the forms an additional fee for the Sheriff’s or Constable’s service is charged (between $35 and $45).
Can a Filing Fee Be Waived?
A filing fee may be paid by the state in case of the indigent petitioner. To have the fee waived the petitioner must be able to prove that he/she really can’t afford to pay it.
People who receive assistance under the state programs are automatically exempted from payment as well as those whose income doesn't exceed 125% of the Federal Poverty Line.
To waive the court fee the person must complete an Affidavit of Indigency form.
How We Can Help
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