THE DIVORCE PROCESS

           There are three ways to file for divorce in Massachusetts, and the procedures for each are slightly different.

            Section 1A-unconstested

            This process requires filing a Separation Agreement (actually the divorce agreement), financial statement and affidavit of irretrievable breakdown with the divorce petition.   If the divorce involves children, the parents must take the parenting course and file the certificates with the court.  The Separation Agreement must include provisions governing all of the issues in the divorce, and both parties must sign it in front of a notary.   The court will schedule a hearing date 4-6 weeks after the parties file the papers.  The actual hearing involves about 3 minutes of questions and answers.  A Section 1A divorce becomes final 4 months after the hearing date.

            Section 1B- contested

            One spouse initiates a “1B” divorce by filing a complaint for divorce on the grounds of irretrievable breakdown.  In this type of action, the parties acknowledge that the marriage is irretrievably broken down but they are unable to reach an agreement on property, custody or support.  By statute, the court will not hear or try the divorce for six months from the date of filing.  During that six- month period, the attorneys will generally conduct “discovery” and try to reach an agreement.   If there are children, both parents must take the parenting course.

            “Temporary orders” may be appropriate if the spouses cannot agree on what will happen during the divorce process.  Temporary orders may be your first experience with the judge and the probate court system.  Temporary orders generally involve custody, visitation, child support, alimony and health insurance as well as use and occupancy of the marital home. Ordinarily, the parties first meet with a family service officer who will help mediate the issues.  If a mediated agreement is not possible, a judge will hear the matter and render a decision.   Temporary orders generally remain in effect while the divorce is pending. 

            Discovery is a legal technique for gathering information.  Some discovery is mandatory, and other discovery is optional.  Discovery can be formal or informal. Within the first 45 days of filing a complaint for divorce, the parties must supply each other with copies of various documents called mandatory discovery.  I am including a copy of Rule 410 of the Supplemental Rules of the Probate Court so you will have the list of documents that you must provide to your spouse.  Either party may send a written list of questions called interrogatories to the other party who must answer them under oath within approximately 30 days.  Either party may send the other a request for production of documents, which is a list of additional documents that the other party must produce.  Typically, these documents are financial records including tax returns, credit card statements, account statements and copies of checks and check registers.  In addition, either party’s attorney may take the other party’s deposition.  At the deposition, the attorney will ask questions of the other party and a stenographer transcribes the parties’ response and produces a written transcript. 

            At some point during the process, the court will schedule a pre-trial conference.  The courts require that the parties and their attorneys meet prior to the pre-trial conference.  This is a good opportunity to negotiate a settlement agreement.  If the parties are unable to reach agreement at the conference, they will appear in court with their attorneys and present to the judge the facts and issues as assembled to date.  The judge will then give the parties his or her impression of the case and an indication of what the result might be if the case went to trial.  This input from the judge often results in a negotiated settlement on the day of the pre-trial conference or shortly after the pre-trial conference.  If a settlement occurs, the judge will enter an order divorcing the parties under Section1B and the divorce will be final in 3 months.

            If the case does not settle at the pre-trial conference, the judge will schedule a trial date.  Over 90% of divorces in Massachusetts settle prior to trial by agreement of the spouses.  Should your case go to trial, which is unlikely, you and I will spend a good deal of time preparing for it so you will know what to expect long before the trial date.

            Fault Divorce    

                        In addition to irretrievable breakdown as grounds for divorce, there seven fault grounds in Massachusetts.  They are:

            1.  cruel and abusive treatment;

            2.  desertion;

            3.  adultery;

            4.   impotency;

            5.  gross and confirmed habits of intoxication (including drug abuse);

            6.  prison sentence, and

            7.  nonsupport.

            The process for a fault divorce is identical to the process for a no- fault divorce.  With respect to alimony, custody or property division, the relative fault of the parties are seldom decisive and play little role in the ultimate resolution of a divorce case.  Very few parties request a fault divorce.