Massachusetts attorney Jason V. Owens explores the many considerations that spouses face when deciding whether it is time for a divorce.
Click here for print friendly PDF format
Few people plan on getting divorced on the day they take their vows. After all, almost nobody wants to get divorced. Sometimes escaping a bad marriage is the only option, however. For victims of domestic violence or adultery, the decision to seek a divorce may be the only way forward.
For many spouses, however, the erosion of their marriage has been a slower, less dramatic process. Financial stress and other worries can wear at a relationship. Couples drift apart and change.
How Will I know if I am Ready for a Divorce?
Divorces are driven by one or both spouse’s unhappiness. How unhappy a person must become to justify a divorce is hard to measure. Nobody wants to quit their marriage early. But staying in a bad marriage until you are totally exhausted or depressed isn’t the answer either.
Many spouses understand that a divorce will likely be necessary someday – but hesitate about moving forward with the divorce process in the meantime. Knowing you need a divorce and being ready are two different things. Here are some common questions that spouses on the brink of divorce often find themselves asking when weighing the question, “Do I need a divorce?”
Common Questions for Spouses Considering Divorce
The more you understand about the divorce process, the more ready you will be. Here are a list of questions that spouses who are contemplating divorce often ask:
1. Am I too unhappy to stay married? Divorce attorneys may not be psychologists, but we spend a lot of time thinking and listening to individuals whose marriages have failed. According to one recent study, Massachusetts is the 7th happiest state in the nation. Nationwide, however, the happiness of Americans has been dropping like a stone in recent years. These surveys make clear that “happiness” is driven by numerous factors, ranging from financial success (or failure) to medical issues to trends in mental health. In the divorce context, it is often helpful for unhappy spouses to see a mental health professional who can help a spouse decide whether divorce should be the next step. As a divorce attorney’s perspective, the best suggestion is often this: Don’t wait to reach your absolute breaking point before filing for divorce. Spouses who enter the divorce process with some degree of mental strength often get through the process better than individuals who are deeply depressed about their circumstances.
2. How long does it take to get a divorce? The duration of your divorce depends most on the level of cooperation and agreement between you and your spouse. A contested divorce typically requires more time than an uncontested divorce. If you go through an uncontested divorce with a divorce mediator, you can potentially finalize your agreement within a couple of months. However, a contested divorce can take well over a year before it is finalized. A second factor is complexity. Even if you and your spouse are largely in agreement, preparing an agreement with substantial income and assets tends to require more time for due diligence and document review. A typical contested divorce often results in a settlement at the Pretrial Conference, which generally takes place between 6 and 9 months after the initial filing, depending on the county. A full blown divorce trial often takes two years to complete. The good news is that more than 98% of divorce cases are resolved through settlement instead of trial.
3. How will a judge decide on certain key issues? The answer varies on the issue at hand. When it comes to child custody, a judge will determine parenting time based on the best interests of the child legal standard, which grants broad discretion to the judge. Property division is dictated by the laws of your state. Massachusetts is an equitable division state, which means that premarital property held by one party may be divided in the divorce, if there was no prenuptial agreement, depending on factors like the length of the marriage and each party’s contribution to the marriage. Child support and alimony are each controlled by specific rules in Massachusetts, the Child Support Guidelines and the Alimony Reform Act. An experienced divorce attorney can evaluate how a judge is likely to rule on each issue during your initial consultation.
4. How much does it cost to get divorced? The cost of your divorce depends on two main factors: The complexity of the issues in your case and the level of agreement between you and your spouse. Spouses who find more common ground tend to resolve their divorces for substantially less than those who litigate, in part because amicable relations between spouses allows for alternate dispute resolution methods, such as mediation. For a heavily litigated divorce featuring complex or highly contested issues, legal fees can exceed $100,000. Most cases cost less than this, although it is not uncommon for the combined legal of both spouses to exceed $40,000 even in cases that are resolved through settlement. The bottom line is this: it is difficult for attorneys to forecast the likely cost of a divorce because at least some of the factors involved – namely, the level of conflict and disagreement between the spouses – is extremely subjective. As attorneys, we can frequently forecast about what a case should cost, but when it comes to domestic relations, what should happen is not always what will happen.
5. Can I keep my house after the divorce? “Who keeps the marital home” is a frequent burning question in many divorce cases. The answer depends on multiple sub-questions, including: Will the home be the primary residence of any minor children? Are you seeking full ownership of the home, or only seeking to live in the home for a limited period of time during or after the divorce? What is the equity in the home, and are there sufficient other assets from the marital estate from which one spouse can buy out the other spouse’s interest in the home? Will you have sufficient cash flow to maintain the home after the divorce? The short answer is, yes, it is possible to keep your home in a divorce. Massachusetts divorces frequently involve one spouse buying out the other spouse’s interest in a home. It is also fairly common for one spouse to continue living in the home after the divorce has been finalized, before selling at a later date that is frequently based on the age of the parties’ children (i.e. selling the home when the youngest child graduates from high school, etc.). In addition to the legal questions surrounding the question of staying in the marital home, it’s important for spouses to consider practical questions, including: Will the cost of staying in the home make you “house poor”? Staying in the home after a divorce is not an option in every case, and it is important for you to speak with an attorney before making any assumptions about “who keeps the house” in a potential divorce.
6. Have you consulted with a divorce attorney? If you’re unsure about filing for a divorce, you should schedule a consultation with a divorce attorney near you. You might be surprised how many outcomes an experienced attorney can predict based on the information you share in a consultation, ranging from child custody, to child support and alimony, to the division of assets. Perhaps more importantly, an attorney can advise you about practical issues, such as how long your divorce will likely to take, how much it will cost, and whether your divorce appears to present highly complex or uncertain questions. Consultations are 100% confidential and information is power. In other words, educate yourself.
7. Consider speaking with a Certified Divorce Financial Analyst (CDFA). Certified Divorce Financial Analysts are financial professions with special training in divorce-related issues. An experienced CDFA can be a major asset to a spouse once a divorce is ongoing, but CDFAs can be even more crucial in the pre-divorce stage, when spouses are trying to answer questions like: Can I afford a divorce or should I stay in the marital home after a divorce? A CDFA can help you understand the assets held by you and your spouse, figure out your short and long-term financial needs, and help prepare you for the many financial considerations that arise in a divorce. (As a law firm, Lynch & Owens has no financial relationship with any financial advisor. However, for individuals seeking a CDFA, we recommend Sandy Cove Advisors on Derby Street in Hingham.)
8. What happens if I wait to file for divorce? People delay getting divorced for all kinds of reasons. Some couples want to see their children off to college before separating. Financial concerns, job loss, medical concerns and simple fear of the unknown are also common reasons. It is important for spouses to know that delay can have a significant impact on a divorce. As children age, child custody considerations frequently change, often making shared physical custody more likely for older children. Older children also mean child support is likely to be shorter and may introduce the complex issue of college expenses. The Massachusetts alimony statute bases alimony duration on the length of the marriage, meaning that longer marriages generally result in longer alimony orders. Meanwhile, the “length of the marriage” is a major factor in the division of assets, with longer marriages increasing the likelihood that one spouse’s premarital assets will be divided. For every negative impact of delaying a divorce, there is also a strategic reason that favors waiting a bit longer. Speaking to a divorce attorney is a good way to consider these issues but remember: Not every attorney can look past his or her financial incentive for encouraging you to file for divorce sooner rather than later. During your consultation, make sure to ask the attorney both the advantages and disadvantages of waiting to file for divorce.
9. Educate Yourself. The Lynch & Owens blog features more than 250 written blogs covering dozens of Massachusetts family law issues in detail. Our Massachusetts Divorce FAQ answers dozens of questions about the process, and our Massachusetts Divorce Series walks through each step of the divorce process, from the initial consultation through trial. There is a lot to learn, and the more informed you become, the easier it will be to answer the question of whether you are ready to get divorced? If and when you are ready, give us a call to schedule a 1-hour consultation with one of our respected team of divorce attorneys.
Schedule a Consultation with a Knowledgeable Divorce Attorney Today!
If you are considering a divorce, you need to hire an experienced attorney to guide you through the process. At Lynch & Owens, P.C., our top-rated divorce team has what it takes to get you through every step with the compassion you deserve.