Frequently Asked Questions: Massachusetts Divorce
Lynch & Owens are South Shore divorce attorneys and family law attorneys
who practice primarily in Plymouth County and Norfolk County, Massachusetts.
The following provides answers to some frequently asked questions about
the divorce in Massachusetts.
How long do I have to live in Massachusetts before I can get a divorce here?
If the cause of the divorce occurred outside of Massachusetts, the plaintiff
must reside in Massachusetts for at least one year prior to the filing
of the action. If the cause of the divorce occurred within Massachusetts,
at least one of the parties must be a Massachusetts resident. Where the
cause of action occurred and what constitutes “residency”
can each be major factors in determining when a party may file for divorce
in Massachusetts. Check out Attorney James M. Lynch’s
blog on domicile and divorce jurisdiction in Massachusetts
for a complete review of this issue.
In which month of the year do most divorces occur?
January is commonly referred to as “Divorce Month.” However,
there are strong indications that September or even March might be contenders
as well. Check out An L&O attorney’s
for a complete review of this issue.
Do I need a reason to get divorced in Massachusetts?
No, you don’t need any reason to get divorced, beyond the fact that
your marriage has irreconcilably broken down. Like most states, Massachusetts allows
, which requires only that one party no longer wants to stay married. You
don’t need any additional reason.
What is the difference between a fault divorce and a no-fault divorce?
In a no-fault divorce, the parties are not required to prove which party
was at “fault” for the divorce; they are only required to
prove that the marriage has broken down irretrievably or that the couple
has irreconcilable differences. In a “fault” divorce, the
Plaintiff must prove that the Defendant has committed a wrong that allows
the Plaintiff to get a divorce. Many people think that a fault grounds
divorce gives the Plaintiff an advantage in getting property division
or alimony; however, this is not generally the case. The Court must consider
the same factors to decide these issues in both fault and no-fault divorces,
and seeking a divorce on “fault” grounds generally creates
needless complication compared with a no-fault filing.
How do I start a divorce in MA?
If the divorce is uncontested, the two parties may file a Joint Petition
for Divorce with a Separation Agreement and an Affidavit of Irretrievable
Breakdown of Marriage. The Separation Agreement must address all aspects
of the divorce. If the divorce is contested, the divorce proceeding is
started by filing a Complaint for Divorce and serving a summons and a
copy of the complaint on your spouse. The summons will be provided by
the court after you file the divorce complaint. There is a filing fee
for both types of divorce that can be waived if the filing party is indigent.
What are “grounds” for divorce in MA?
“Grounds” for divorce is the “reason” for divorce.
The state will only allow a divorce for a recognized reason as set forth
by statute. The most common reason for divorce is “irretrievable
breakdown of the marriage.” Irretrievable breakdown is also called
“no-fault divorce.” This means that you can get divorced if
you simply no longer want to be married. In addition, Massachusetts has
fault grounds for divorce including:
- Desertion for at least one year;
- Addiction to drugs/alcohol;
- Cruel and abusive treatment;
- Refusal to support spouse when able; and
- Confinement in penal institution for 5 or more years.
My spouse and I already signed a separation agreement, do I still need
a divorce in MA?
Yes. A separation agreement is not enforceable without approval by a Judge.
The state is considered to be a party to the marriage and must approve
the terms of a divorce. The state is represented by a Judge, who must
determine that the separation agreement is “fair and reasonable”
before the divorce can be final. Until the agreement is approved by a
Judge, the enforceability of an agreement remains in question.
Is a simplified divorce procedure allowed in Massachusetts?
Yes. If the parties agree on all issues, a simplified divorce procedure
is available. An action for divorce based upon an irretrievable breakdown
of the marriage may be commenced by filing a joint petition for divorce.
The joint petition must be accompanied by a sworn affidavit alleging that
the marriage has suffered an irretrievable breakdown along with a separation
agreement and sworn financial statements executed by each party. The parties
can request a hearing date on the same day the papers are filed.
What is an uncontested divorce in MA?
An uncontested divorce is a divorce in which both parties have agreed on
all issues and put the
in writing for the Judge to approve. If there is even one issue that is
not agreed upon, the divorce is still contested. If the parties have agreed
on all issues before the divorce action is filed, they may file a
joint petition for divorce
. Otherwise, the divorce will start as a contested divorce and may be amended
to uncontested when the parties reach an agreement.
Do my spouse and I have to live apart to file for a divorce in MA?
Massachusetts does not require a couple to separate before filing a divorce.
If a couple can’t agree on who should move out, they can file a
divorce and let a judge decide who will move.
Does having an uncontested divorce still mean I still have to go to Court in MA?
Yes, there is a court hearing involved in an uncontested divorce. The state
is considered a party to every marriage and must participate in every
divorce. The state is represented by a Judge who must find that the settlement
is fair and reasonable to all parties, and that children are adequately
protected. In addition, the Judge must protect the state in the event
that one party receives public assistance. In most cases, an uncontested
divorce hearing is quick and routine. Indeed, if one party cannot appear
at an uncontested hearing, the Court may accept an affidavit in lieu of
that party’s appearance.
I was just served with divorce papers in MA. Can I fight it?
Because Massachusetts allows for divorce on the grounds of irreconcilable
differences, it generally not possible for one party to prevent the divorce
from eventually occurring. However, the specific timing and terms under
which parties are divorced are often subject to significant variation
depending on the level of agreement and cooperation between the parties.
Can I get a divorce in MA even if my spouse doesn’t want to?
Yes. Massachusetts permits either spouse to obtain a divorce based on irreconcilable
differences, even if the other spouse objects. Although cooperation between
spouses does tend to make the divorce process easier and less expensive.
Without cooperation, the divorce is a contested matter that takes longer
and subsequently becomes more expensive and procedurally challenging.
Ultimately, a trial may be required if one spouse will not agree to proceed
with the divorce; however, even a highly resistant spouse cannot generally
stop a divorce from moving forward in the end.
How long will it take for my divorce to become final in MA?
A divorce will typically become final ninety days after the Judge issues
a divorce decree. Prior to becoming “final”, the judgment
is referred to as the “Judgment of Divorce Nisi”. After this
waiting period, the Court will issue a final divorce decree called a “Judgment
of Divorce Absolute”. May practitioners consider the 90-day waiting
a period an anachronism that causes needless confusion. The so-called
“Nisi period” only affects the parties’ marital status;
all of the substantive terms set forth in the Agreement are effective
immediately upon the entry of “Judgment of Divorce Nisi”,
and can be enforced through contempt proceedings if one party fails to
obey the terms of the Agreement or Judgment within the 90-day period.
However, the Nisi period is important, inasmuch as a party cannot re-marry
prior to the expiration of the period, and parties remain married for
state and federal tax purposes if the Nisi period overlaps with the last
day of the tax year (i.e. December 31st). For this reason, most Massachusetts
attorneys include a separate waiver of each party’s estate claim
against the other spouse, in the event one party dies prior to the end
of the Nisi period. Without such a waiver, a party may be entitled to
a share of the former spouse’s estate, even after their divorce
agreement has been reviewed and approved by a judge. If the parties have
an uncontested divorce with a separation agreement, the Judge must first
approve the agreement which then has an additional thirty day waiting
period. In these cases, the divorce generally becomes final 120 days after
the parties appear before the Judge. However, this may be delayed a few
more days as the waiting periods start when the Judge signs the decree
and not when the parties appear before the Judge. The waiting periods
allow the parties an opportunity to file an appeal (only in contested
divorces), reconcile, or notify the court if they believe the other party
fraudulently hid assets or income.
I don’t like my divorce agreement, can I get it changed in MA?
A modification can occur to correct mutual mistakes. In addition, “merged”
issues relating to alimony and children (including parenting time and
child support) may also be modified, if the moving party can demonstrate
that a material change in circumstances occurred. Conversely, the division
of marital assets generally cannot be modified after the final Separation
Agreement has been approved by the Judge. Other than issues relating to
children and alimony, post-decree modification usually does not occur
unless there is a provision in the Separation Agreement to do so, or if
the other party committed fraud, used undue influence, or made a misrepresentation.
It is important to note that the so-called 90-day “Nisi period”
generally has no effect on the modifiability of an Agreement or Judgment,
where the effect of the Nisi period is limited to each party’s marital status.
Do I need a lawyer to get a divorce in MA?
An attorney is not required for you to obtain a divorce; you have the right
to represent yourself. Visit our
Official Forms: MA Divorce and Family Law page
to see some of the required documents. As the Lynch & Owens Divorce
Series illustrates, however, you may be putting yourself at a serious
disadvantage if you choose to represent yourself instead of retaining
counsel. Unless you and your spouse have no significant assets, children
or unsettled issues, a divorce can become very complicated. An experienced
family law attorney can be of great help during every stage of divorce
from filing to litigation, and can significantly affect the outcome of
contested divorce proceedings. At a minimum, you owe it to yourself to
seek out an attorney for a consultation before you choose to proceed alone.
Who pays my legal fees in a MA divorce?
Usually, each party pays his or her own legal fees and expenses in a divorce.
However, if your spouse has sole control of the family finances, and you
have no access to funds to pay legal fees, you have a right to file a
motion with the Court seeking a release of funds with which you can pay
your legal fees. At the end of the divorce, attorney fees may be treated
as a liability incurred during the marriage and allocated between the
parties as part of the property division. Moreover, the court can order
legal fees to be paid by a party when the court believes that a party
has behaved improperly such as failing to obey a court order (contempt
of court). However, an order requiring one party to pay the legal fees
of the other due to misconduct is rare; it most instances, each party
is ultimately responsible for paying the legal fees incurred by his or
What is the “automatic financial restraining order” in a MA divorce?
When the Plaintiff files a complaint for divorce, and when the Defendant
is served with the Complaint and Summons, each party is subject to an
automatic financial restraining order pursuant to
Massachusetts Supplemental Probate and Family Court Rule 411
. This order prohibits each party from transferring money except to pay
usual and customary living and business expenses or to pay their
. It also prohibits parties from incurring debt in their spouse’s
name, or changing life or health insurance policies. Violation of this
order may be punished as a contempt of court.
Can I hire a lawyer just to draft divorce documents for me in MA?
It depends. Any attorney can draft a Separation Agreement for an individual.
Until recently, however, attorneys were prohibited from “ghostwriting”
legal pleadings on behalf of unrepresented parties. However, Massachusetts
has recently adopted a limited appearance representation rule for lawyers
(LAR) which allows ghostwriting as long as the document reflects that
it was drafted by an attorney. Under this rule, clients can hire attorneys
to draft legal pleadings that the client will file on his or her own behalf
in court. Only attorneys who have been trained under this rule may accept
LAR clients. All of the attorneys at Lynch & Owens have been trained
to accept clients on a limited appearance basis. The limited appearance
rule is not effective in all courts in Massachusetts, however, and our
attorneys reserve the right to decline limited representation cases.
What is mandatory discovery / mandatory self-disclosure in a MA divorce?
In a divorce, within forty-five days after service of the Complaint and
Summons on the Defendant, both parties must provide to the other three
years of records (tax returns, bank statements, investments statements,
insurance information, etc.) pursuant to
Supplemental Probate and Family Court Rule 410
. These documents must be produced even if the opposing party does not
specifically request them. If you do not have these documents, you must
exercise all reasonable efforts to obtain the documents. Failure to provide
these records can result in court sanctions. The rule explaining this
may be found at the state’s
trial court website
. This rule does not prevent parties from engaging in additional discovery.
Do I have to fill out a financial statement for a MA divorce?
Every person who appears in a divorce, child support or alimony proceeding
that involves money or finances must fill out a financial statement. If
your gross (pretax) income is less than $75,000.00 per year you must fill
out the short form. If your income is $75,000.00 or greater, you must
fill out the long form. Your financial statement is likely to be more
accurate if you complete the form in advance of any court hearing. Financial
statement Forms including schedules for self-employment and rental income,
and instructions for filling out the forms may be found on our Official
Forms: MA Divorce and Family Law Page.
Do I have to take a parenting course to get divorced in MA?
If you have children under 18, and are getting divorced in Massachusetts,
you must take the parent education class. The course is designed to help
parents understand the challenges children face with parents in two households.
Information on this class including a list of providers can be found at
the state’s trial court website. Check out
for a rundown to the new rules for the parent education class that went
into effect on May 1, 2016.
I signed a prenuptial agreement, is it valid and enforceable in MA?
Prenuptial agreements are
generally enforceable in Massachusetts
. If there was full financial disclosure and the agreement is free of
and coercion, the agreement like likely be enforced by a Court. However,
such an agreement cannot
contract away rights of children
. Property division and alimony can be addressed in a well-drafted prenuptial
agreement, subject to approval by the judge. A poorly drafted prenuptial
agreement may be found to be unenforceable, however, making the use of
a qualified attorney especially important. For three tips on drafting
prenuptial agreements, check out
What is the difference between “merging” the separation agreement
with the judgment of divorce versus having it “survive” as
an independent agreement in MA?
If a portion of an agreement merges into the divorce decree, the merging
portion can be modified if there is a substantial change in circumstances
following the entry of judgment. Portions of an agreement that do not
merge are generally said to “survive”. Surviving provisions
are said to have independent legal significance. In common language, the
merged portions of an agreement are modifiable after the entry of judgment,
while the surviving (or non-merged) portions cannot be modified. It is
important to note that the division of marital assets generally survives
the judgment of divorce, and is not modifiable at a later date, while
child-related issues generally merge, and can be modified after the judgment.
In most cases, the question of “merger vs. survival” occurs
in connection with the alimony provisions of the agreement.
Can I change my name back to my maiden name after my MA divorce?
Yes, the complaint for divorce has a specific section which allows you
to revert back to your maiden name following the entry of judgment, if
you wish to do so. If you would like to resume your maiden name, it is
important to do so through your divorce, where a stand alone
Petition to Change Name can be a time-consuming process
Will I lose my health insurance when I get divorced in MA?
A former spouse may be covered under an individual’s health insurance,
so long as plan rules
former spouse coverage. Unfortunately, an increasing number of employers
are no longer providing medical and dental coverage for former spouses
beyond an expensive rider to the policy; through COBRA; or through a separately
purchased plan through the employer. A failure to consider the cost and
availability of post-divorce medical and dental insurance is one of the
most common mistakes individuals make during the divorce process. (It
should be note that the presence or absence of former-spouse coverage
is generally unrelated to the availability of
medical insurance coverage for unemancipated children
Who gets the dog/cat in a MA divorce?
Pets are personal property and are treated as “marital property”
by courts in divorce actions. Although specific judges may occasionally
consider which party is entitled to receive a cherished family pet, many
judges will refuse to enforce “visitation” agreements that
parties include in their divorce agreements. If there are children involved
in a case, a judge is more likely to seriously consider which party should
retain a given pet based on the children’s feelings. A Judge may
consider other arguments regarding ownership of an animal: if the pet
was a gift to one spouse or was owned by one spouse before marriage, then
these factors may be the basis for deciding ownership. As pets are usually
viewed as having no “fair market value”, judges frequently
struggle to find a basis for awarding “custody” of a pet that
each party greatly values for sentimental reasons.
What does “contempt” mean in a MA divorce?
Contempt is short for “contempt of court.” A contempt can occur
when there is a violation of a court order. In the context of family law,
failure to obey a court order and pay child support or alimony, allow
parenting time, provide
, or other violations are considered contempt of court. Enforcement of
the court order after violations have occurred can be done by a “complaint
for contempt.” A contempt action is a complaint that seeks to enforce
the existing court orders; mere dishonesty is not necessarily sufficient
for a court to find contempt. In Massachusetts, a person who is filing
a contempt action should use the official court form which can be found on our
Official Forms: MA Divorce and Family Law Page
. A contempt can also occur when a person violates court protocols. Examples
of this could be swearing at a Judge, threatening a Judge, or even yelling
at a Judge. Bad behavior that occurs in the presence of a Judge can be
punished by the Judge immediately and without a trial. Typically, a judge
may only find a party in contempt if there is a clear and unequivocal
order and a clear disobedience of the order.
How do you enforce a court order in a MA divorce?
Depending on the order, there may be several means of enforcement. One
of the most common remedies is by filing a contempt action to seek compliance
with the order. In order to successfully pursue a contempt remedy, you
must be able to prove a clear court order and a clear violation of a clear
order. In addition, you must be able to prove that it was possible for
the Defendant to comply with the order. For example, if a Defendant fails
to pay child support because he is in jail, he may have a good defense
to a contempt action based on his genuine inability to pay. In most contempt
actions, the Judge is less concerned with punishment, and more concerned
with convincing the Defendant to comply with court orders moving forward.
When the Judge finds a person in contempt, the Judge may order attorney
fees or sentence an individual to a term in jail.
How do probate and family court judges punish dishonesty in a Massachusetts divorce?
It is important to distinguish between “dishonesty” in the
context of the marital relationship (i.e. adultery and lies told between
spouses) and dishonest statements and actions during the divorce litigation
process. Probate court judges are generally disinterested in punishing
adultery or dishonest behavior between spouses during the marriage unless
the dishonesty had a specific financial component. However, probate court
judges will vigorously punish parties for making dishonest statements
directly to the court, or for engaging in child alienation or other types
of negative behavior once litigation is underway. In custody cases, judges
will punish negative behavior by granting expanding parenting time or
custody to the other parent.
How will the Social Security changes enacted in 2015 change affect my divorce?
Recent changes in federal law mean that former spouse Social Security benefits
will no longer become payable based solely on a worker spouse reaching
retirement age. These changes change could significantly affect how parties
and divorce lawyers negotiate the division of assets and alimony in divorce
cases. Moving forward, ex-spouse benefits will only commence when the
working spouse retires. In the past, former spouse benefits began when
the working spouse reached retirement age, regardless of whether or not
the working spouse actually retired. For more information on this complex
subject, check out
How Will the Bipartisan Budget Act of 2015 Social Security Changes Impact
Where can I found official forms for Massachusetts divorce and family law cases?
Can I change lawyers during my divorce?
Generally speaking, you can change lawyers during a divorce, so long as
your prior attorney is being replaced with a new divorce lawyer. (Note
that the rules are sometimes different if you intend to represent yourself
“pro se“. Some judges will not permit a lawyer to withdraw
so a party can proceed pro se if a trial date is looming.) There can be
several drawbacks to changing lawyers. First, the problems you perceive
with your case may not be your lawyer’s fault. Adverse orders, in
particular, often fall outside a lawyer’s control, where not every
argument convinces a judge. A more fundamental issue is the loss of “institutional
knowledge” in your case when you change attorneys. No matter how
carefully your new lawyer examines your case file, there is no substitutes
for prior attorney’s memory and experiences. Some degree of information
or knowledge is always lost when you change attorneys. Finally, hiring
a new attorney generally means you must pay your prior counsel what you
owe and come up with a new retainer for the new lawyer.
How long must I wait to get remarried after getting divorced in Massachusetts?
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 remarry, 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 i.e. contested vs. uncontested.
What is a divorce trial like in Massachusetts?
Divorce trials are expensive, time-consuming and generally inefficient
processes that unfortunately cannot be avoided in every case. The challenges
associated with trial include the extreme time and resources required
to prepare for trial, the extraordinary legal costs associated with trial,
the lengthy delay in obtaining a ruling, and the lack of control over
the case’s outcome.
What questions should I ask a divorce attorney before hiring him/her?
It is imperative that you feel 100% comfortable with the attorney responsible
for your divorce case. Obvious questions to ask your attorney during your
initial consultation include: how much does the attorney charge per hour,
how much is his or her standard retainer, and what does the lawyer believe
is the likely outcome of your case based on the facts you provide. Equal
important are more nuanced questions such as: does the attorney believe
your expectations are reasonable, does the attorney believe he or she
can effectuate your goals, and how would the attorney handle the most
challenging parts of your case. For a divorce mediator’s perspective
on the questions clients should ask before hiring a family law attorney,
check out this blog
from attorney and divorce mediator Justin L. Kelsey.
How are Massachusetts divorce agreements negotiated?
The vast majority of divorce cases are resolved by settlement rather than
a contested trial. How divorces are settled is a complex subject. Luckily,
An L&O attorney does this subject justice in this
entry of the Lynch & Owens Massachusetts Divorce Series
, which provides a detailed review of the negotiation and settlement process
in a Massachusetts divorce.
Can parties be bound by a signed preliminary divorce agreement?
Yes, parties who execute a preliminary divorce agreement, commonly known
as “memorandum of understanding”, can be bound by its terms,
if the instrument indicates that the parties intended for the agreement
to be binding. Such agreements are often helpful for parties who have
reached an “agreement in principle” on major issues, but still
need to work out the final details of the divorce. However, as detailed
in this recent blog, parties should understand that
such agreements can be binding, even if a party subsequently changes his
or her mind
How does a party prove that a former spouse is cohabiting with a new romantic partner?
The Alimony Reform Act [Ch. 208, s. 49(d)
] provides that “[g]eneral term alimony shall be suspended, reduced
or terminated upon the cohabitation of the recipient spouse when the payor
shows that the recipient spouse has maintained a common household, as
defined in this subsection, with another person for a continuous period
of at least 3 months.” Accordingly, a party paying alimony to a
former spouse is eligible for a suspension, reduction or termination of
alimony if he or she can prove his or her former spouse is cohabitating
with a new romantic partner. As detailed in
, proof of cohabitation requires a party to the former spouse shares a
“common household” with the new romantic partner. Methods
of proof include social media, photographs, private investigator testimony
or subpoenaed records.
Does it matter if our prenuptial agreement was signed in another state?
How should I prepare for my divorce?
Preparing for divorce is a mix of education, organizing key documents,
making smart financial choices and hiring the right lawyer. For a complete
rundown on divorce prep, check out our blog on
preparing for divorce in Massachusetts
What are postnuptial agreements and how do they work?
Postnuptial agreements are similar to
, only they are entered midway through a marriage. A “postnup”
sometimes makes sense when one spouse receives a large inheritance during
a marriage, our spouses experience other financial issues that could impact
a future divorce. Postnuptial agreements also tend to arise when one spouse
has angered or frustrated the other spouse. As noted in our blog,
Massachusetts courts will scrutinize a postnuptial agreement
to ensure it was entered under fair circumstances.
Can increased parenting time reduce child support?
Yes. Under the 2013 Child Support Guidelines, parents with 67% or more
of the parenting time receive “full” child support orders;
parents with shared 50/50 custody only receive child support if there
is a disparity in the parties’ earnings; and parents with between
50% and 33% of the parenting time receive a hybrid order, that averages
“full” child support with the smaller amounts paid in most
shared custody scenarios. Check out Attorney Jason V. Owens’
for a complete review of this issue.
When can child support arrears be reduced in Massachusetts?
For several decades, the answer used to be never. However, a recent Supreme
Judicial Court decision, Rosen v. Rosen (2016), has created a crack in
the impenetrable shield of protection surrounding child support arrears
in Massachusetts. Most parents who pay child support in Massachusetts
understand that their obligation to pay will eventually end. Their kids
grow up and child support stops. For parents who fall behind on child
support, however, the obligation to pay continues, almost without limitation.
Under Rosen, there is now a very limited exception to the ordinary rule
that child support arrears never go away. Check out An L&O attorney’s
for a complete review of this issue.
What affect does remarriage have on child support in MA?
In the vast majority of cases, remarriage has no effect on a prior child
support order. However, if a new spouse enables a parent to reduce his
or her employment income, or provides a drastic change in lifestyle for
the parent, then the new spouse’s financial means may become an
issue. Judges are generally quite reluctant to modify an existing child
support based on a parent’s subsequent remarriage. If a newly married
parent seeks to take advantage of his or her new spouse’s finances
to obtain to change child support, however, a Judge is more likely to
scrutinize the new spouse's finances.
I don’t want to pay child support any more; can I simply forfeit
my parental rights in MA?
Generally, no. The courts will only terminate parental rights when there
is another person adopting the child. Such an adoption generally will
not occur without the consent of the parent receiving child support. In
rare cases, a step parent may agree to adopt a child, thereby releasing
a biological parent from his or her child support obligation. Termination
of parental rights is a rare and irreversible process, however, that courts
generally avoid, absent severe abuse or neglect.
Do I need to show my ex an itemized list of how I’m spending child
support in MA?
No, courts generally do not scrutinize the exact manner in which a parent
spends child support. So long as you provide shelter, food, and clothes
for the child, a Judge generally will not challenge a parent’s spending
patterns. However, a parent who seeks child support in excess of the Massachusetts
Child Support Guidelines may be expected to detail why an order under
the Guidelines is insufficient.
What happens when a custody or visitation order is violated in MA?
If an order of the court is violated, a contempt action can be brought
against the party who violated the order. In a contempt action, the court
can fashion a remedy to correct the behavior in the future or to punish
the violation. In order for a court to find a party in contempt, there
must be a clear and unequivocal order and a clear disobedience by the
party. While contempt is available when any order is violated, contempt
for custody or visitation orders may be treated differently. The court
may not punish a person who fails to exercise visitation, for example.
However, a parent who refuses to exercise visitation may eventually be
subject to an increase in child support or a reduction in parenting time.
If a parent interferes with the other party’s parenting time, however,
the consequences can be severe, ranging from emergency orders to criminal
kidnapping charges in extreme circumstances.
Can I stop visitation in MA if I didn’t get paid my child support?
No. While some states allow a court to suspend visitation to enforce child
support payments, Massachusetts does not allow this type of “self-help”,
which can result in a finding of contempt against the party who denies
the other parent visitation on financial grounds.
Does custody and visitation affect the amount of child support in MA?
Yes. Typically, if physical custody is granted to one parent, then the
other parent will pay child support to the custodial parent based on the
Massachusetts Child Support Guidelines. However, a traditional physical
custody award assumes that the child spends approximately one third of
the time visiting the other parent. If the time spent with parents varies
from one-third with the visiting parent, and two-thirds with custodial
parent, then child support may deviate from a strict application of the
Guidelines. The Guidelines call for a different formula when time spent
with the child approaches an even split. Moreover, an argument can be
made that failure of a non-custodial parent to exercise his or her parenting
time may result in an increase in child support obligations, due to the
additional child-related costs borne by the custodial parents.
Do I need a Court’s permission to permanently move my children out
Generally speaking, you need a Massachusetts
to permanently remove your children from Massachusetts during or after
a divorce. If your child is less than five years old and was not domiciled
in Massachusetts at the time of his or her birth, then the Massachusetts
may not apply to your child. However, Massachusetts retains jurisdiction
over a child’s custody for six months following the child’s
permanent move out of Massachusetts, and parties must abide by any custody
or parenting orders in effect at the time of the move, regardless of whether
the removal statute specifically applies.
My child just turned 18. Can I stop paying child support?
The answer is no
, you should not stop paying child support without a valid court order
ending your support obligation, even if your child has turned 18. Massachusetts
law permits child support to continue until a child’s 21st birthday
if the child remains principally dependent on one or both parents, and
the law allows child support as late as age 23 if the child is enrolled
full-time in a four-year undergraduate program. A parent who unilaterally
stops paying child support without a court order risks being found in
contempt if the child is less than 23 years old. Absent a clear old ending
child support, an order in effect at the time at the time of the child’s
18th birthday will generally continue in full force and effect after said
birthday until the child’s 21st or 23rd birthday.
Do my child’s grandparents have a right to seek visitation?
Grandparent visitation rights in Massachusetts
are very limited
. Generally speaking, for a grandparent to spend time with a child, the
grandparent must have the permission of at least one of the child’s
, the court will prohibit a parent from permitting the children to be in
contact with a third party (such as a grandparent) if there is a clear
risk of harm to the children from the contact. Equally rarely, the court
will order visitation between a grandparent and child over the objection
of all living parents if the court determines that the child would suffer
What is the definition of legal custody in Massachusetts?
Under the Massachusetts divorce statute, “shared legal custody”
is defined as the “continued mutual responsibility and involvement
by both parents in major decisions regarding the child’s welfare
including matters of education, medical care and emotional, moral and
religious development.” Meanwhile, the statute defines “sole
legal custody” as when “one parent shall have the right and
responsibility to make” the same “major decisions” regarding
the child. However, finding a precise definition of what rights legal
custody embodies is a surprisingly difficult task.
Is there a presumption favoring shared physical custody in Massachusetts?
Massachusetts law does not presumptively favor shared physical custody
or 50/50 custody plans. Although some states have recently trended towards
favoring shared physical custody as a matter of law, Massachusetts has
not moved in this direction yet. A recent bill, the Massachusetts Child-Centered
Family Law, sought to make shared physical custody presumptive. However,
after numerous amendments, the bill eventually passed the House in a much
different form, only to fail to receive a vote in the senate. For the
time being, Massachusetts Probate and Family Court judges retain complete
discretion to enter custody orders based solely on the best interest of
the child standard.
How do courts decide child custody and parenting time cases?
Like most states, Massachusetts judges determine
issues based on the “best interest of the child” standard.
This legal standard places great power in the hands of the judges who
decides child custody issues based on a very wide range of factors. For
a detailed review, check out our blog on how
Massachusetts courts determine child custody issues
How do child tax credits work for divorced couples under the Tax Cuts and
Jobs Act (new federal tax law)?
The new tax law, the TCJA, included major new changes for child tax credits
compared to the previous law. Although the TCJA beefed up child tax credits
compared to the tax exemption structure under the old tax law, parents
must be aware that full child tax credits are only available until a child
turns 16 years old. For children 17 and older, the tax credit tends to
be much smaller. For more details, check out our blog on
how child tax credits work under the TCJA
. These changes affect married, divorced and
Can child support ending cause an increase in alimony?
Yes, this is a possibility. As Attorney Nicole K. Levy detailed in this
, Massachusetts courts have held that the termination of child support
can be grounds for a new or increased alimony order under certain circumstances.
When it is appropriate to attribute income to a party in a child support
In Massachusetts, child support and alimony orders are based on the respective
earning capacities of the parties. If a party is underemployed, or fails
to make reasonable efforts to find employment, a judge may attribute income
to that party, even if the party’s actual income is significantly
lower than the attribution. As detailed in
, judges consider numerous factors when determining whether to attribute
income, including whether a party is earning less than he or she could
through reasonable efforts, if the party became unemployed or accepted
lesser employment voluntarily, and how long the party has been out of
How can a party enforce a Massachusetts child support or alimony order
that the other party refuses to pay?
In Massachusetts, Probate and Family Courts have broad powers to enforce
child support and alimony orders when a party files a Complaint for Contempt.
As detailed in
reviewing Complaints for Contempt for violations of financial orders,
the powers of the court include incarcerating a non-paying party, order
the payment of legal fees and costs, and assessing interest against a
When does the clock start running for durational alimony in Massachusetts?
In Massachusetts, durational alimony creates a presumptive termination
date for marriages of less than 20 years. The duration of alimony is based
on the length of the marriage, which is measured from the date of the
marriage to the date of service of the complaint for divorce. However,
the durational period generally only begins running upon the entry of
the final judgment of divorce, subject to several exceptions. Check out
Attorney Nicole K. Levy’s
for a complete review of this issue.
What is “rehabilitative alimony” in Massachusetts?
Rehabilitative alimony is the periodic payment of support to a spouse or
former spouse for a definite period of time based upon the expectation
that the recipient will become economically self-sufficient after the
passage of time. An example is payment of temporary alimony to allow the
recipient spouse to obtain an education or job training.
What is “reimbursement alimony” in Massachusetts?
Reimbursement alimony is available for marriages of less than 5 years to
compensate a spouse or former spouse for economic or non-economic contributions
to the financial resources of his or her former spouse. An example of
such alimony is when one spouse temporarily supports the other while the
second spouse pursues an advanced degree.
What is “transitional alimony” in Massachusetts?
Transitional alimony is available for marriages of less than 5 years, to
transition the recipient spouse to an adjusted lifestyle or location as
a result of the divorce. This type of alimony can be used to bridge the
gap between being married and a single life, such as when a spouse moves
out of state following a divorce.
Are stock options and RSUs considered “income” for child support
and alimony purposes in Massachusetts?
Generally speaking, all taxable employment compensation
is treated as income for child support and alimony purposes
at the time it is received, including proceeds from exercised stock options,
restricted stock units (RSUs) proceeds, performance stock units (PSUs)
proceeds and other forms of non-salary compensation that are treated as
taxable income in the year received. Unvested stock options, RSUs and
PSUs that are acquired during a marriage may also be treated as assets
subject to division in a Massachusetts divorce, although this depends
on numerous factors. Non-taxable forms of employment compensation or benefits,
such as employer 401K “matching”, certain forms of profit
sharing, and unvested stock awards may or may not constitute income for
child support and alimony purposes, often depending on complex issues
of fact and law.
Are deviations from the “Alimony formula” allowed in Massachusetts?
Yes, the Massachusetts Alimony Reform Act permits deviations from the ordinary
rule that alimony shall not exceed the receiving spouse’s need or
30 to 35 percent of the difference between the parties’ gross incomes
established at the time of the order being issued.
How does premarital cohabitation impact alimony in Massachusetts?
Recent appellate cases have made it easier to extend the duration of
based on premarital cohabitation. This means that if you and your spouse
lived together before getting married, it may extend the length of alimony
after a divorce. For a complete rundown on premarital cohabitation and
alimony, check out our recent blog on
using premarital cohabitation to extend alimony
Can I modify a surviving alimony agreement?
Is alimony still tax deductible in Massachusetts?
When do Massachusetts judges deviate from the duration limits for alimony?
How is property divided in a divorce in MA?
Massachusetts allocates property between spouses based on an equitable
division of assets. This means that the court will consider the following
factors in allocating property:
- the length of the marriage
- the conduct of the parties during the marriage
- the age, health, station, occupation, amount and sources of income, vocational
skills, employability, estate, liabilities and needs of each of the parties
- the opportunity of each for future acquisition of capital assets and income
- the contribution of each of the parties in the acquisition, preservation
or appreciation in value of their respective estates
- the contribution of each of the parties as a homemaker to the family unit.
Equitable division does not mean an equal division of property, although
an equal division of property is common. Equitable division means that
the property will be divided fairly. Judges and attorneys broadly agree
that the most important factor in determining the division of assets is
the length of the marriage. Following a short-term marriage (15 years),
a judge is often more inclined to divide the assets equally. Medium-term
marriages of 5 to 14 years frequently present a challenge to a judge that
can require close scrutiny of the other factors set forth above.
Can liquidity affect the division of assets in a divorce?
Yes. Liquidity of marital assets (like cars, cash, and capital assets)
can affect the division of assets, with judges treating the division of
highly liquid assets differently from illiquid assets. Check out Attorney
Nicole K. Levy’s
for a complete review of this issue.
Does a spouse’s potential to acquire future assets affect the division
of assets in a MA divorce?
Yes. While the court’s core review centers on present marital assets
– such as retirement accounts, real estate property, and other current
assets – the court may consider other factors, such as each party's’
skills, employability and/or their respective ability to acquire future
income and assets, in making its division. While a spouse generally will
not be entitled to receive a share of future assets, the disposition of
the current marital assets can be affected by the likelihood of future
wealth for either spouse. Check out Attorney Nicole K. Levy’s
for a complete review of this issue.
What happens to my debt if I get divorced in MA?
Debts are treated as “negative” assets and are divided as part
of an equitable division of property. This means that the court will consider the same
in allocating debts as it does in allocating other assets. Any liability
that is secured by an asset usually becomes the obligation of the person
who receives the property. An example is that a mortgage is secured by
real estate and usually becomes the obligation of the person who lives
in the real estate. An auto loan usually becomes the obligation of the
person who has use of the car. Credit card debt is usually unsecured debt
and is part of the general division of assets. Although courts purport
to assign liabilities in the same manner as they do assets, many divorce
practitioners believe that the allocation of liabilities can be less predictable
– and subject to greater variation on a case-by-case basis –
than the division of assets in a typical divorce.
What happens to my retirement funds if I get divorced in MA?
Retirement funds typically fall into two categories: (1) acquired before
the marriage; or (2) acquired during the marriage. In a short or medium-term
marriage, retirement funds acquired before the marriage may not be subject
to division in a divorce. Retirement funds acquired during the marriage
are generally subject to division and treated as an asset of the marriage.
There are no hard and fast rules regarding the division of retirement
funds, however, and a skilled attorney may convince a judge to depart
from the conventional wisdom in a given case. Retirement funds may require
a special court order to divide the asset pursuant to a divorce. If so,
the court will issue a Qualified Domestic Relations Order (“QDRO”)
to divide the asset. The QDRO must be prepared by the parties and the
retirement plan administrator may need to be consulted.
How do I make sure my spouse doesn’t hide assets in a MA divorce?
The best remedy to avoid the
fraudulent concealment of assets
by a spouse is to file a
and serve your spouse. Upon filing an action for divorce, an
automatic restraining order
issues, constraining each party’s use of marital assets. The order
is binding on the Plaintiff upon filing the divorce and binding on the
Defendant upon service of process. This means that once the initial divorce
papers are served on a spouse, that spouse is
from transferring or hiding assets except for ordinary living expenses
and to pay their attorney. If they want to use assets for another purpose,
they will generally need the written consent of the spouse or an order
of a Judge. Until you file a complaint for divorce, there are few if any
constraints on how your spouse handles marital assets.
What is a qualified domestic relations order (QDRO)?
QDROs are special orders entered by judges in divorce cases that enable
a judge to divide a qualified retirement account, such as a pretax 401K,
without either party needing to “withdraw” funds from the
account and incur tax liability.
Drafting QDROs can be challenging
for divorce lawyers because QDROs include references to complex retirement
plan rules and federal law that are often unfamiliar to family law attorneys.
Do I need to take all of my personal belongings if I move out of the marital home?
The answer to this question depends on two issues: what stage your divorce
is in and how you define “personal belongings”? If a divorce
has been filed, you can take items from the house, but should be mindful
that the value of the property you take might be deducted from your share
of the marital assets. In most situations, taking clothes, personal effects,
and modest amounts of furniture will have little or no impact on the divorce.
However, if a party “cleans out” the house, if often forces
the remaining party to purchase new essentials, such as furniture and
cutlery, and a party taking property in an overly aggressive manner can
be perceived as spiteful or unreasonable. All of these concerns aside,
the practical reality is that a person who is permanently moving out of
a marital home often only gets one chance to take their most precious
personal belongings. Where judges tend to view personal property in terms
of dollar value, a party leaving the home must think carefully before
leaving behind property with sentimental value.
Does it matter whose name is on the deed/title to the marital home or other property?
Massachusetts is an equitable property division state, which means that
all property owned by either party is subject to division in a divorce.
This means that property held in either party’s name can be divided
in a divorce. However, this does not mean that all property is automatically
divided equally between two spouses in a Massachusetts divorce. In a Massachusetts
divorce, the judge will examine equitable factors such as the length of
the marriage, the manner in which certain property was acquired, and each
party’s contribution to the acquisition, improvement and preservation
of an asset. The judge will then divide the property in an equitable manner
based on the considerations set forth in Ch. 208, s. 34.nnIn most longer-term
marriages in Massachusetts (14+ years), the majority of the property owned
in either party’s name will be divided equally between the parties.
In shorter-term marriages (less than 5 years), judges will scrutinize
property held in one party’s name much more carefully to determine
which party was responsible for the acquisition and upkeep of the property.
In medium-term marriages (6 to 13 +/- years), the analysis often falls
somewhere in the middle, making a qualified divorce lawyer particularly
important. In short, the name that property is held in does not necessarily
matter in a Massachusetts divorce, but the manner in which marital property
was acquired – including who paid for the property and when –
often matters quite a lot. In contrast to the equitable division model
are the eleven “community property” states, which are Alaska,
Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington,
Wisconsin and Puerto Rico. In these states, only property held in both
parties’ names is subject to division. Property held individually
(i.e. in one party’s name) at the time of the divorce is considered
“separate property” and is not subject to division. In the
remaining 39 equitable division states, including Massachusetts, all property
owned by either party is subject to division.
Can a spouse’s future inheritance be divided as an asset in a Massachusetts divorce?
In Massachusetts, a future inheritance is generally considered a “mere
expectancy interest”, which means that most future inheritances
cannot be divided pursuant to the division of assets. However, as detailed in
, a future inheritance can still affect the final division of assets where
it represents one party’s opportunity to acquire income and capital
assets following the divorce. Moreover, interests in trusts and family
gifts may be divided under some circumstances.
Can a settlement from a personal injury case be divided as an asset in
a Massachusetts divorce?
In general, personal injury settlements are marital assets that can be
equitably divided pursuant to the division of assets in a Massachusetts
divorce. Indeed, as detailed in
, even a future interest in a
personal injury settlement can be divided as an asset in a Massachusetts divorce.
How do Courts treat small businesses and self-employment income in divorce cases?
Can judges assign one spouse’s student loan debt to the other spouse
in a divorce?
What’s the difference between divorce mediation and divorce litigation?
Divorce mediation involves the parties to a divorce (spouses who want to
be ex-spouses) engaging with a neutral professional who does not and cannot
advocate for either of the parties. The Attorney Levy is trained (sometimes
an attorney but this is not necessary) at assisting the parties in reaching
necessary agreements and memorializing those agreements for submission
to the only court that will grant a divorce in Massachusetts, the Probate
& family Court. If the parties are able to reach agreements on all
issues required by the court before it grant a divorce (for example, child
support and custody, division of the marital assets, etc.) the parties
may never have to litigate.
How can I find a divorce mediator on the South Shore of Massachusetts?
Lynch & Owens offers divorce mediation services from our Hingham office through
South Shore Divorce Mediation
. Contact us to schedule a divorce mediation consultation with one of our
Massachusetts divorce mediators.