Basic Information About Divorce and Separation

1. What is a divorce?

A divorce is a court judgment ending a marriage. The court requires a "legal reason" for the divorce. Grounds or reasons for a divorce are discussed starting at question 13. In addition to legally ending your marriage, the court looks at other issues which need to be decided before the divorce is finalized.

2. Is divorce my only option?

No. Married couples may choose to live apart from each other, but remain married, for religious reasons, financial reasons, or for the sake of the children. You may decide to seek a Separate Support Order or a Complaint for Custody.

3. What is the difference between divorce and separate support or a complaint for custody?

The main difference is that a judgment of divorce ends the marriage; a judgment of separate support or custody does not.
Although there are differences between them, a separate support order or complaint for custody can address the same issues as a divorce, for example, custody, visitation, child support, alimony and division of property.

4. What is legal separation?

There is no "legal separation" in Massachusetts. We do have "separate support cases," and "separation agreements." A "separate support" case covers most of the issues separating couples need to think about but does not end the marriage. A "separation agreement" is a written agreement signed by the husband and wife.

If you complete a "Separation Agreement" (discussed in more detail in question 8) without filing it with the court, it is nothing more than a contract between you and your spouse. While it may not be a bad idea to have a contract, it may be difficult to enforce; therefore, you probably will want to file your agreement with the court.

5. What issues are settled in a divorce case or separate support case?

Some of the issues that need to be decided in a divorce judgment are:
the grounds (legal reason) for the divorce

• custody of children
• support of children
• visitation with the children
• division of assets (for example, pensions, bank accounts or stocks)
• alimony (or support for the spouse)
• division of personal property (for example, car or furniture)
• what will happen to any real estate
• who gets to live in the marital home
• division of debts (for example, credit cards or electric bills)
• name change
• possibly, an order for protection from abuse.

If these issues are not resolved by agreement of the parties, the judge decides the issues. You get a chance to present evidence that helps her decide.

6. When should I consult a lawyer?

You should speak with an attorney for advice and more information on the differences between divorce, separate support, a complaint for support or a complaint for custody. You may decide to have a written "Separation Agreement" between you and your spouse detailing the decisions and arrangements you have made while you are living apart.

7. Does it cost money to file for divorce or separate support?

Yes, the Probate and Family Court charges fees for filing and handling certain documents. If you are on welfare or your income is 125% or less of the current poverty threshold, the court will probably waive your fees and costs. In order to get the fees and costs waived, you will be asked to fill in and file An Affidavit of Indigency. If your fees and costs are waived this way, you will not have to pay the cost of the sheriff - the court does. Depending on your situation, the court may require additional information and documents from you. They will tell you what information is required. (See questions 24 and 25)

8. What is a Separation Agreement?

A Separation Agreement is a written agreement between you and your spouse on how matters relating to your marriage will be resolved. The agreement should address custody of children, visits, support of children, property division (including alimony and pensions), what will happen to the martial home, including who will own the real estate, who will live in the marital home, division of debts, change of name, and 209A protective orders. A Separation Agreement is good only if both spouses sign it. It usually is made part of the divorce judgment.

9. What if I don't want a Separation Agreement?

No one can be forced to sign a Separation Agreement. If you are being pressured to sign any document, walk away and consult your own attorney. At the divorce hearing, the judge can refuse to accept an agreement if she believes it is unfair or the product of intimidation or duress.

10. I don't have a separation agreement, but I think I may need one. Can I write it myself?

If you are considering a Separation Agreement, it is a better to consult an attorney. Some of the issues in a Separation Agreement can have far-reaching implications, including tax consequences. It is important that you spend some time on your own thinking about your particular situation and the needs of you and your children if you are a parent. Keep in mind that circumstances change over time. Focus on the best interests of the children for now and the future since that is the standard used by the courts in Massachusetts and most other jurisdictions.

You can try to write up your own agreement using the list of issues in question five, but separation agreements are technical, so writing your own is difficult.

11. If I think I want to divorce, how can I prepare for it?

Divorce is a big decision and should not be made impulsively, recklessly or without a good deal of thought and investigation. As you probably know statistics show that 1 in 2 marriages end in divorce. Gather as much information as you can about divorce. Talk to friends. Ask questions. Read books. Go to the Probate and Family Court in your county to observe hearings and trials. Most family court proceedings are open to the public with the exception of "closed" hearings, which are private, sensitive and usually involve children.

12. What about counseling?

Divorce cases can be emotionally charged, so you are encouraged to seek counseling and support before and/or during the process. Don't wait for your spouse to agree to participate in counseling. Individual counseling can help.

If it is safe and there is no violence in the relationship, parents and children may attend sessions together to help reduce the effects of a divorce or custody dispute on the children and to help the family heal emotionally. There are many books available with tips on handling the stress of separation.

Divorce is often a lonely and emotionally draining experience. It is our hope that by getting information and controlling the process yourself, with the support of this manual and other people who are going through or have been through the same thing, you will find the experience less painful.

13. Do I need to have a reason to divorce my spouse?

Yes and no. You do need to choose a "grounds," or legal reason, for the divorce that fits the facts of your situation. It is sufficient that you and your spouse don't get along any more and don't want to be married any more.

14. What are the different grounds for divorce?

They consist of two "no fault" grounds and seven "fault" grounds. The "fault" grounds, as the name implies, mean that one person was considered at fault in causing the marriage to end.

15. What is a "no fault" divorce?

A "no fault" divorce is a divorce in which the marriage is broken beyond repair but where neither party is to blame. In Massachusetts, the no fault divorce ground is also called "Irretrievable Breakdown of Marriage." There are two kinds of "irretrievable breakdown" divorces. They are often referred to by the section of the law under which they are found, "1A" and "1B."

1A--Irretrievable Breakdown, both parties participate:

By Agreement each party swears in an affidavit (a written statement made under oath before a notary public) that the marriage is irretrievably broken, and file that affidavit with a Joint Petition for Divorce, and a Separation Agreement. If this ground is used, both parties must appear in court. There is no waiting period between filing and requesting a trial date. They can request a trial date when they file their petition, separation agreement and affidavit.

1B--Irretrievable Breakdown, only one party files:

One party files a Complaint for Divorce claiming "Irretrievable Breakdown of Marriage." Whether or not the other party agrees, the plaintiff (the person filing for divorce) can request a hearing six months after filing the Complaint. No affidavit or Separation Agreement is required. The defendant/spouse can choose not to appear in court.

16. What are the most commonly used fault grounds?

Cruel and Abusive Treatment:

This is the most common fault ground for divorce. You need to show that something your spouse knowingly did or didn't do caused you harm or upset. Acts of physical abuse support the grounds for cruel and abusive treatment. Sometimes certain forms of mental cruelty may be enough. You have to show it caused you physical harm, for example, your spouse’s drinking and staying out all night caused you headaches and stomach problems. How long it takes to complete a divorce varies with each case. (See question 23 for time line information.)

Utter desertion continued for one year:

Your spouse left the marital home voluntarily and without your forcing him to leave. He or she left, has no intention of returning home, and has not lived with you for at least one year before the date of your filing the complaint for divorce.

17. If I use desertion as a ground, what do I have to show?

You will have to show that you did not consent to your spouse’s leaving the home, that he left a year ago and has never returned. You may be deserted even though your spouse never physically left the marital home. The judge will have to consider the circumstances of each case in order to decide whether desertion occurred where the other spouse never physically left the home.

18. What are the other fault grounds?

Adultery: This means sexual intercourse outside the marriage. You will have to prove that your spouse had sexual intercourse with someone else. This makes adultery a difficult ground for obtaining a divorce.

Impotency: This means inability to have sex. This ground for divorce is rarely used.

Gross and confirmed habits of intoxication caused by voluntary and excessive use of intoxicating liquor, opium, or other drugs: There must be a voluntary and excessive use of drugs or alcohol which has become a pattern.

Gross or wanton and cruel refusal or neglect to provide suitable support and maintenance for the other spouse: This means that your spouse has refused or neglected to provide support and maintenance for you. To use this ground, you will have to show that your spouse has the ability to pay support but has refused or neglected to do so. You will also have to show that the refusal or neglect will cause injury to your life, limb or health or create a danger of such injury.

Sentence of Confinement in a Penal Institution: This means your spouse has been sentenced for life, or for five years or more. This ground is based on length of sentence, not how much time he actually spent in prison.

19. Where do I file for divorce?

You may file a divorce in Massachusetts:

• if you have lived here for a year, or
• if the conduct that is the reason for divorce occurred in Massachusetts and you lived as a married couple in Massachusetts, regardless of where your spouse now lives, or even if his address is unknown. 
• You file a divorce in the Massachusetts Probate and Family Court in the county where you and your spouse last lived together if either of you still lives in that county. If neither of you lives in the county where you last lived together, you may file in the county where you live, or you may file in the county where he or she lives.
  

20. How do I start the divorce process?

You file the Complaint for Divorce and other documents at the court. If there is an Affidavit of Indigency, the clerk will approve it and stamp it, and give you a copy. You will also get a Domestic Relations Summons. Arrange for the sheriff to give a copy of the complaint to the spouse. When the sheriff does this, it is called "service of process," meaning that the sheriff has served the papers to the spouse.

Before trial, either party may request that the court make temporary orders, for example concerning custody, child support, or visitation. Either party must request a pre-trial conference, and then there is a final hearing, the trial.

21. When should I go to court?

Going to court too quickly can often create more litigation. In making your decision to live apart, to divorce or to contest certain issues, weigh the price you will pay with your time, emotional pain and money.

Each case is unique. When children are involved, your relationship with your spouse does not end with the separation or divorce. You probably, but not necessarily, will continue to have contact with him regarding support, visitation, and other parental responsibilities. You both will be grandparents of your children's children. If it is appropriate in your situation, for the sake of your children, keep the lines of communication open, but only if it is safe to do so. If possible, put your children's welfare ahead of continuing conflicts.

22. Can I keep my address a secret?

Yes, if you need to keep your address a secret from your spouse, you can file a motion asking that the court impound your address. You will need to tell the court why it is necessary that your abuser not learn your address.

23. Once I file with the court, how long is it before I get a trial date?

Each case is unique and the answer to this question depends on many factors such as:

• which grounds you are using
• how rapidly or slowly you are able to complete each step in the process
• how long it takes to find and serve your spouse (if your spouse's address is unknown, serving him will take longer)
• how complete and accurate your papers are
• how busy and back logged the court is
• whether your spouse contests or disagrees any part of the divorce
• whether there are temporary orders or negotiations in process.

There is generally a twenty day waiting period after the defendant has been given copies of the divorce papers before either party can request a pre-trial or trial. (This period is six months for no-fault divorces where you file alone.) If you do not know where your spouse lives or works, you must still give "notice" of the pending divorce, but since you cannot locate him or her, you will serve him or her by an alternate method such as service by publication in the newspaper and mailing notice to his or her last known address. There is no hard and fast rule as to how long it takes to complete the process and be granted a final divorce judgment.

24. How much will my divorce cost?

There is a fee to file a divorce, and to get a summons. As of 2004, the filing fee is $200.00, plus a $15.00 surcharge, and a summons costs $1.00. Notifying your spouse, called service of process, can cost around $30.00 or more if he or she lives far away. (See question 7)

25. I cannot afford the fee, can I still file for divorce?

Yes, if you receive TAFDC or other public assistance or your income is less than 125% of the federal poverty level, or you can show that paying the filing fee would keep you from buying necessary food, shelter or clothing, you may file an An Affidavit of Indigency. The court may waive the filing fee and you will not have to pay the costs for "service of process."

26. Can my spouse be made to pay any part of the fees?

Sometimes. The court can require your spouse to pay attorney's fees for you, if your attorney can show that the legal work needs to be done and your spouse can afford to pay for it.

27. What about help from legal services?

You local legal services program may be able to provide you with free assistance. To find your program, click here.

28. I am not eligible for legal services and I need a lawyer. What then?

If money is a concern for you, do not hesitate to tell the attorney right from the start. Consider hiring a private bar attorney to handle your case with little to no retainer. In certain cases, an attorney can seek attorney's fees from your spouse. (See question 26) Keep in mind that your attorney charges by the hour so the less time it takes her to gather information the less it will cost you. Whenever possible, offer to get needed information or documents. Keep your own file. Be prepared for meetings or telephone conversations with your attorney. If your attorney told you she would need certain information, have it ready for her. All these steps will help to keep the costs down.

29. Can I do my own divorce?

Under Massachusetts law you have the right to appear on your own behalf in a courtroom in any legal matter including divorce. However, proceeding "pro se" (literally, "for yourself") in getting your divorce is advisable only under certain circumstances.

30. Should I represent myself?

The ideal pro se divorce situation is one in which you and your spouse have no disputes regarding any issue, neither the grounds for divorce nor the custody and support arrangements (if applicable). It is particularly appropriate to proceed pro se in cases where you and your spouse have been separated for some time and you are sure that neither of you will challenge the divorce.

31. Can someone help me represent myself?

Yes. Some women's centers and legal services' offices offer a "do it yourself" divorce clinic to guide eligible participants in doing their own divorce. There are Divorce Handbooks available that give information about divorce terms and the process for obtaining a divorce with or without a lawyer. Your local library or county law library has a family law section.

32. What if the case gets complicated?

If you and your spouse have custody disputes, if you are married and paternity of any of the children is in question, if you want support (alimony) or if there is any marital property which hasn't already been satisfactorily divided, you are advised to hire an attorney to represent you. If the case is complicated, you do not know how to proceed, or you are unsure how to proceed, consult an attorney to protect your interests.