Fennessy Law Offices

Divorce Q and A
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DIVORCE QUESTIONS AND ANSWERS

My spouse said that they would not give me a divorce. Can I get a divorce without their cooperation?

Yes. I often say that it takes two to get married, and one to get divorced. Although it may take longer if the other person does not cooperate or respond, with the appropriate court  motions and hearings, you can still get divorced.

How Long Does the Process Take to Obtain a Divorce?

Technically, parties can walk into the court with all the required pleadings and a fully executed separation agreement, have their matter heard that day, and be divorced in 90 to 120 days. In contested matters, given the numerous court hearings, pretrial conferences, etc., it may take up to a year. In Massachusetts, all divorces follow a 14-month track.

Do We Have to Go to Court?

Yes.  However, if you can't reach an agreement, then a court date is set and a judge hears the case. Technically, even if you reach an agreement, the judge has to approve it and find it's fair and equitable based on a finding of facts.

What Are the Steps Necessary to Obtain a Massachusetts Divorce?

There are seven basic steps:

1.                        you must prepare and file either a complaint for divorce or joint petition for divorce. 

2.                        if your matter isn't proceeding on a joint basis, the defendant must be served the complaint and summons.

3.                        both parties must fully disclose their finances, including all income, expenses,   assets and debts.

4.                         the parties must discuss and attempt to settle the issues of custody and the parenting issues, such as health insurance, property division and support, and merely address the future issue of college education, if applicable. 

5.                        parties attempt at arriving at a separation agreement. This document addresses all rights of the parties and identifies any rights that have been waived. A comprehensive list of all the terms in the dissolution of your marriage       is then presented to the court.

6.                        the agreement is submitted to the court; alternatively, if no agreement has been reached, the case proceeds to trial.

7.                        Finally, judgment is ordered. The court issues a final order that the marriage be dissolved and, if the parties have not agreed on their own, the terms in which each shall follow.

What if My Spouse Avoids Service of The Summons or Complaint?

If your spouse cannot be found, the court can still grant your divorce. There are options, such as publishing the complaint in the local newspaper and waiting a period of time that must pass before your divorce becomes final. The judge can grant the divorce and custody-related issues, but support orders are a bit more complicated, unless the court can assume jurisdiction over certain property to satisfy support needs. 

Once We Start With the Divorce Process, Should I Close Bank Accounts?

While this may seem like a legitimate act of self-protection, be careful of violating Rule 411 (Massachusetts' asset restraining order). Additionally, you should know how acts of self-protection often escalate into a full-scale war of hide and seek. Safe deposit boxes are often questioned, gifts suddenly become loans, and antiques or collections suddenly disappear.

Can One Lawyer Represent Both Spouses In Order to Save Money?

One lawyer can never really represent both parties in a divorce or paternity action, but it is not always necessary to have two lawyers. In simple matters, one of the parties can appear "pro se," that is, representing him- or herself. One lawyer draws all the necessary documents without the need of a second lawyer.  However, a word of caution: if financial support, custody or property division is involved, the self-represented party should at least consult with a lawyer and get input before signing any agreement. Misunderstandings about tax implications, merger and survival language, or other complicated issues could later result in unforeseen issues.

 What Is a Retainer Fee?

This is the fee law firms initially charge for taking your case. It is generally not the entire fee. Hours spent on your case are typically credited against the retainer fee. If and when the cost goes beyond the initial retainer, an additional retainer check is usually required, or the additional hours are paid for in the manner agreed upon between you and the attorney. 

Would I Have to Pay for the Initial Meeting or Interview With a Lawyer?

It depends, and you should ask when setting your appointment. If it is clear that you are not looking for a lawyer to hire but are seeking legal information, then you should expect the lawyer to charge for his or her time.

Is It Acceptable to Discuss the Divorce With My Spouse?

Other than matters of reconciliation or co-parenting, leave the other matters to the lawyers. What you say to your spouse may compromise your negotiating position and require more work by your lawyer later.

Who Gets Custody of the Children?

We don't hold "title" in our children; rather the standard that the court tries to use is what is in the best interest of the children. When both parents are equally fit, the court will usually place the children primarily with the parent who has been the primary caregiver – the one who was primarily responsible for the everyday needs of the children during the marriage. In other cases, the court may order an equal custody split. However, what will usually happen is that one parent gets primary custody and the other a portion of the overall parenting plan.

What Is the Difference Between Physical Custody and Legal Custody?

Physical custody determines which parent the child lives with most of the time. One parent can have sole physical custody, or both parents can have joint physical custody. If one parent has sole physical custody, the other (noncustodial) parent gets a visitation schedule as part of the parenting plan.    Legal custody is who gets to make the major decisions involving that child. One parent can have sole legal custody, or the parents share joint legal custody.

Do Mothers Always Get Custody of Children?

No. Although it was once presumed that young children were better off living with their mothers, the Tender Years Doctrine has kicked in, and many more fathers now seek custody. A mother now must prove that she is in fact, the principal nurturing parent or that, for some other reason, the children would be best served by being placed in her custody.

Can the Children Choose With Whom They Want to Live?

To some degree, a child's preference may be weighed in light of their maturity and the reasons for the preference. There is no set age at which a child's preference will control the court's determination. It is only one of many factors when determining the best interests of the child.

What Can Be Done About a Child Who Refuses to Visit?

Not much. Hostility between parents is often behind the child's reluctance. Forcing the child – either by parental pressure or by court orders – tends to intensify the problem. Counseling is one hope for altering the child's attitude. It is not uncommon for the child to outgrow this reluctance and even to reject the parent who was encouraging it early on.

How Can I Prepare Myself for a Custody Battle?

Getting an attorney is the first step. Start to keep a calendar and a journal documenting everything you do. Recreate the past six months, writing down everything you've done and everything your spouse has done. You need to show the court that you are the primary caretaker of the children and that you are able to parent on your own. Make a list of all the things you do for your children each day. Prepare a photo album with photos of you with your children happy in your care.

Anything you have – journals, photos, school records, bank records – will be admissible in court, even if we need to have them authenticated.

How Is the Amount of Child Support Determined?

In Massachusetts, presumptive guidelines for child support are based on the income levels of both parents, the number of children, and the issues revolving around child care and health insurance costs. The noncustodial parent typically pays support to the primary custodial parent. 

Can I Get Support for My Children if the Other Parent and I Were Never Married?

Yes. While the type of case that will need to be filed will be different, the results will be the same. Marriage, or lack thereof, does not affect the obligation to pay child support. On the other hand, if the parents were never married, there will be no possibility of obtaining any spousal support, otherwise known as alimony. 

Which Parent Can Claim the Dependent Tax Deduction for a Child?

When parents divorce, the custodial parent typically claims the exemption, or executes IRS form 8332 releasing the exemption to the noncustodial parent. Some parents rotate the benefit each year, take the benefit for half of the children, or weigh the actual tax benefit received before making any decisions. 

If Alimony Is Part of the Divorce, How Long Will It Last?

It depends. In a long-term marriage, an alimony award will last until the recipient spouse marries, the death of either party, or the modification of an existing order when either party demonstrates a change in circumstances from the most previous order. 

Will Living With a New Partner Affect My Alimony Payments?

Maybe. The issue is whether the new situation is one that warrants a change in circumstances. If you are now co-mingling finances with another person, no longer paying certain expenses, etc., the court may make findings that a modification is warranted. 

How Are Assets and Debts Divided in a Massachusetts Divorce?

Massachusetts is an equitable distribution state. While equitable doesn't always equate to equal, the judge has discretion to distribute property and debts on various factors. There is no presumption of a 50/50 split in either case, but it is the normal starting point, as homemaker contributions are generally given equal weight with financial contributions during the marriage. 

Is My Retirement Account Considered Marital Property?

Everything acquired during the marriage, no matter whose name it is in, is considered marital property. Additionally, any increase in value of premarital property is considered marital.

Can Someone File Bankruptcy to Avoid Child Support or Alimony?

Generally, bankruptcy will discharge property obligations but will not discharge child support or spousal maintenance obligations. The bankruptcy court looks at the substance of the obligation and not just the language of the decree to determine what is – or isn't – considered support.  An appearance in the bankruptcy court may be necessary to protect your rights under your support order or decree. 

Can Every Case Be Settled Before Trial?

Technically, yes, but realistically, no. Some cases can never be settled, because of either the personalities of the parties or an honest disagreement to the facts or interpretation of the law. In these cases, a matter can only be resolved with a trial. Where only certain issues are contested, it is possible to try those issues and stipulate (agree) on the rest. 

What Is Involved in a Trial?

Opening statements, direct examination of the witnesses by the plaintiff, cross-examination of same by the defendant, direct examination of the defendant's witnesses, cross-examination by the plaintiff, closing arguments, and the judge's ruling.

What Is the Difference Between Direct and Cross-Examination?

When your lawyer questions witnesses called on your behalf, it is called direct examination. At the conclusion of the direct examination, the other lawyer may question the witness further in an attempt to undermine or discredit that testimony by showing inconsistent statements, bias, ulterior motives, etc. This is called cross-examination. 

If There Is a Previous Order, Can It Be Modified?

Yes. Massachusetts has what is known as the "change of circumstances" rule. Other than a child support review, which automatically triggers every three years, if the circumstances change in any other support-, health insurance-, or parenting-related issue, then the basis for the orders may warrant a modification.

 

 Contact The Law Offices of Robert H. Fennessy. 508.668.5595

Attorney Fennessy appears in the probate and family courts in Norfolk, Bristol, Worcester, Middlesex, Plymouth, Suffolk, and Barnstable counties. 

 

 

 





Fennessy Law Offices * PO BOX 31 * Milton, MA * 02186
Phone: (508) 668-5595 
rfennessy@fennessylawoffices.com 

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