Divorce Basics

The Basics

There are two types of divorce in Massachusetts, but for all practical purposes, the one you will be most interested is called a “no fault” divorce. The reason for this is fairly straightforward – in a “no fault” divorce, you don’t have to actually prove anything to proceed. The basis on which you file is that there are “irreconcilable differences” and that’s that. You could file for a “fault” divorce, but if you do, the you will have to actually prove fault for the divorce to be approved.

Even if you could prove fault, it doesn’t provide any direct benefits. The court will follow the same tests and rules for custody, financial support, and all the other key decisions about your case. In fact, the court often recommends that an additional petition for “irreconcilable differences” would be added to a “fault” petition to ensure the divorce is resolved.

If you are the one who has made the decision to file, you will need to gather the requisite paperwork, your filing fee, and get a certified copy of your marriage license (obtained from the town hall where you got married). With everything together, you will need to send it to the probate and family court for the county you’ve most recently lived in for at least six consecutive months. If you moved to a different county recently, you will have to file in the previous county if you have less than 6 months of established residency in your new home.

WHAT HAPPENS IN A DIVORCE?

The primary goal of a divorce is to take a full consideration of what we will term as, “the marital estate” and dissolve it between you and your spouse. The marital estate is the accumulation of your years together with your spouse. Property you’ve bought together, money you’ve both earned, valuable assets, your debts – each one will be considered and weighed against the standard of a “fair and equitable distribution.”

It is important to bear in mind that “fair and equitable” does not necessarily mean 50/50. While that is definitely on the table, the standard allows for more creative solutions that both you and your spouse to craft to reach your personal goals.

In addition to assets, the court will also hear and consider arrangements for custody of children. Just like with asset distribution, there can be a lot of creative and custom solutions to address parenting time, custody solutions, and financial support. The court will take suggestions from you and your spouse (or hear arguments if there is a dispute on custody) and consider what is in the best interest of the children. Facts around your case can tilt that consideration one way or the other.

TIMELINES AND ROADMAPS

The road through a divorce can be a lengthy one, and the timeline is driven largely by the amount of conflict and tension between you and your spouse. The more conflict there is, the longer the case will take between settlement negotiations to the court schedule.

In the event of a contested divorce, the court may not schedule you for a pre-trial conference for four to six months. The first real step in a contested divorce will be a temporary order hearing that will set the ground rules for the divorce. During temporary orders, you can ask the court for a wide range of things from who gets access and use of the marital home to custody and financial support. It is important to make a strong showing at a temporary orders hearing, because these can become permanent parts of the judgment.

Once temporary orders have been completed, the focus will turn to negotiation and settlement of the outstanding issues. If necessary, your attorney might talk to you about opening discovery to get additional records, take depositions, and gather additional evidence to refute claims that have been made. This process can take some time, especially where your goals might conflict with the goals of your spouse. However, more than 90% of cases will reach a settlement by the pretrial date. Very few cases end up in trial, but those that do can take at least a year to 14 months to resolve. In many cases, longer.

Keep in mind that every case is unique and yours might not go down the same exact path as someone else you know. The only way to know how far you have to go is to start with your first step.

GET HELP FROM AN ATTORNEY

Choosing the right paperwork and filling out everything accurately can be difficult when you are unsure of how to move forward in the process of divorce. You should consult with your attorney to help you file for divorce properly and to get you started on the right path. The team at O’Connor Family Law has been there before, and we will help you move forward with the first step in a divorce to get you through this difficult journey.

Learn more about divorce in Massachusetts or schedule a consultation by calling  774-703-3755 or by visiting our website.