Massachusetts divorce lawyer Jason V. Owens reviews the “90-day Nisi Period”, which prevents Massachusetts residents from remarrying for 90 days after being divorced.
In Massachusetts, an individual must wait for the so called “Nisi Period” of between 90 and 120 days before their divorce becomes “final” (also known as becoming “Absolute”), despite both parties appearing at a hearing before a Probate and Family Court judge and entering a binding Separation Agreement. Only after the Nisi period expires can the parties re-marry, file tax returns as unmarried individuals, and avoid having paying a surviving spouse share if they die. The 90 vs. 120 day Nisi Period distinction depends on what type of divorce was filed.
120 days – Joint Petition for Divorce – Parties who file a Joint Petition for Divorce pursuant Ch. 208 s. 1A, then the court will schedule a hearing when the judge reviews the pleadings, financial statements and separation agreement of the parties. Upon approving the agreement, then a Judgment of Divorce Nisi will issue 30 days later, and Judgment Absolute enters 90 days after that. Accordingly, Joint Petitioners must wait 120 days from the day of their divorce hearing for their marital status to change from “married” to “divorced”, after which they may remarry.
90 days – Complaint for Divorce – If one or both parties files a contested Complaint for Divorce pursuant to Ch. 208, s. 1 or 1B, the rules change slightly. First, if six months have not elapsed since the contested complaint was filed, then parties seeking to divorced only have two options: wait for six months to elapse or amend the complaint to a Joint Petition, thereby shifting them to the 120-day waiting period. If six months have elapsed since the filing date, however, the parties may accelerate the process: upon entering a separation agreement that is approved by a judge, then Judgment of Divorce Nisi will enter immediately (rather than 30 days later, as for Joint Petitioners), and Judgment of Divorce Absolute will enter 90 days later. In other words, so long as six months has passed since the first filing, the parties can be ready to remarry in 90 days.
Lastly, it should be noted that the so-called “90-day Nisi period” is frequently criticized in Massachusetts for being a relic of bygone era when the state sought to complicate and slow down the divorce process on moral grounds– i.e. “divorce is bad”, so the state should make it more difficult to become divorced. Indeed, even if one believes that the state should slow down the divorce process, the Nisi period hardly achieves this goal – beyond confusing people over their marital status and creating problems with estate planning and tax filing, as people mired in the Nisi period ask themselves, “am I married or divorced?” It cannot be emphasized enough that all substantive orders contained in a separation agreement– child support, custody, division of assets, etc. – become effective and enforceable upon entry of Judgment of Divorce Nisi. (A person who thinks “I don’t have to pay child support because my divorce isn’t ‘absolute’ yet” is simply wrong, and will likely be served with a contempt.)
The 90 day “Nisi period” affects only one thing: marital status. Indeed, the only “positives” that seems to come from the 90-day period is that wait sometimes provides an additional 90 days of medical insurance coverage under medical plans that cut off coverage for former spouses, and (less frequently) enables some divorced parties to file joint tax returns despite being divorced in all other meaningful respects. I will explore the tax implications of the Nisi Period in a future blog.