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?
Depends on whetrher it is an "agreeable" divorce, or contested. In contested matters,
given the numerous court hearings, pretrial conferences, etc., it may take up to a year, or perhaps longer. In Massachusetts,
all divorces generally follow a 14-month track. Non-contested divorce cases, in which the Parties agree to all the issues,
is much quicker.
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 parenting issues, such as health insurance,
property division, support, and 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 be ordered by the Judge.
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, doing so may violate 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?
Mediators do not represent either party, but are used to facilitate the divorce action, generally
in an "agreeable divorce" with limited legal issues. Basically, one lawyer can never really represent both parties
in a contested 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 himself 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 to begin working on your case. It
is generally not the entire fee. Hours and minutes spent on your case are typically credited against the retainer fee. If
and when the cost approached or 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. In my practice, the consulting fee is
$100 for 1/2 hour, which is refunded if the person becomes a client.
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?
People 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,
or may order an equal custody split. However, what may 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 refers to 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 changed that, 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. Short of agreement
of the Parties, this usually requires a temporary order or permanemt order from a Judge. 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.
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. 508.212.3377
Attorney
Fennessy appears in the probate and family courts in Norfolk, Bristol, Worcester, Middlesex, Plymouth, Suffolk, and Barnstable
counties.