Chapter 8. Separation and Divorce

1.What is a divorce?

A divorce is a court judgment ending a marriage. The court requires a legal reason or ground for the divorce. Grounds for a divorce are discussed starting at question 13 in this Chapter. 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. A married woman may choose to live apart from her husband but remain married to him for religious reasons, financial reasons, or for the sake of the children. You may decide to file a Complaint for Separate Support or a Complaint for Custody to deal with custody, visitation and/or child support without getting a divorce. You can also file a Complaint for Support to deal with child support.

If you do file for divorce, you would file a Complaint for Divorce or a Joint Petition for Divorce.

3. What is the difference between a Complaint for Divorce and Complaints for Separate Support or 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, complaints for separate support or custody can address some of the same issues as a divorce.For example, each can address issues involving custody, visitation, child support, and/or spousal support.

4.Can I get a legal separation in Massachusetts?

There is no "legal separation" in Massachusetts. We do have a Complaint for Separate Support, and "separation agreements." A Complaint for Separate Support can cover most of the issues separating couples need to think about, but it does not end the marriage. A separation agreement is a written agreement signed by the husband and wife, usually filed under a Complaint for Divorce or a Joint Petition for Divorce (separation agreements are discussed in more detail at Question 8 in this section).

Most separation agreements are worked out as part of a divorce that is pending in Probate and Family Court, and are filed with the court and approved by a judge. These separation agreements then usually become part of the Probate and Family Court’s judgment, and can be enforced in this court. If you complete a separation agreement and do not file it with the Probate and Family 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 is often difficult to enforce this type of contract.

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 (pensions, bank accounts, or stocks, etc.)
• tax consequences (who gets to take the child as a dependent, etc.)
• alimony (or support for the spouse)
• division of personal property (car or furniture, etc.)
• what will happen to any real estate, including the marital home;
• who gets to live in the marital home
• division of debts (credit cards, electric bills, or mortgages, etc.)
• name change
• possibly, an order for protection from abuse.

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

6. When should I consult a lawyer?

You should speak with an attorney for more information about any of these things, including the differences among 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 husband detailing the decisions and arrangements you have made while you are living apart; attorneys can help you with drafting these.

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. There are also costs to have a sheriff or constable serve the papers on the other party. If you are on public assistance or your income is 125% or less of the current poverty threshold, the court should waive your fees and costs. You may also get your fees and costs waived if you can show that having to pay them will deprive you or your dependents of the necessities of life, including food, shelter or clothing. In order to get these fees and costs waived, you will be asked to fill in and file an Affidavit of Indigency. 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.)

If you would like to access the Probate and Family Court Uniform Fee Schedule online, go to www.mass.gov/courts, click on Trial Courts, then on Probate and Family Courts.Scroll down and you will find the Uniform Fee Schedule.

8. What is a separation agreement?

A separation agreement is a written agreement between you and your husband on how matters relating to your marriage will be resolved. The agreement should address such things as custody, visitation, child support, property division (including alimony and pensions), what will happen to the marital home, including who will own the real estate, and who will live in the marital home, tax consequences, division of debts, change of name, and protective orders. A separation agreement is good only if both spouses sign it. It usually is made part of the divorce judgment. You should get advice from an attorney before signing a separation agreement.

9. What if I do not 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 do not 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 best to consult an attorney. Some of the issues in a separation agreement can have far-reaching implications, including tax consequences. These issues are beyond the scope of this manual. It is important that you spend some time thinking about your particular situation, your needs and the needs of your children if you are a parent. Keep in mind that circumstances change over time. Remember that if you had children together, the court will focus on "the best interests of the children" when you are trying to decide what to do or trying to negotiate an agreement.

You can try to write up your own agreement, but separation agreements are technical, so writing your own is difficult. Again, you should get advice from an attorney.

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 one in two marriages ends in divorce. Gather as much information as you can about divorce. Read books. Ask questions. 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 usually involve private and sensitive matters.

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. Do not wait for your spouse to agree to participate in counseling. Individual counseling can help. If it is safe and there is no more 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 for women.The purpose of this manual is not only to equip you with necessary information, but also to help make the experience of separation or divorce less painful by reminding you that you are not alone in this endeavor.There are legal and counseling services available in your area.By providing this important information, it is our hope that this manual will help you feel more in control of the process.

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

Yes and no. You do need to choose a "ground," or a legal reason for the divorce that fits the facts of your situation. It is, however, enough that you and your husband do not get along anymore, or do not want to be married anymore.

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, Mass. General Laws Chapter 208, sections "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 this affidavit is filed with a Joint Petition for Divorce, and a separation agreement (see question 8). 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 other party 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 husband knowingly did or did not 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, his drinking and staying out all night caused you headaches and stomach problems.
• Utter desertion continued for one year: You will have to show that your husband left the marital relationship voluntarily and without your forcing him to leave (usually this means he has left the marital home), that your husband has no intention of returning home, and that he has not lived with you for at least one year before the date of your filing the complaint for divorce. 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.

17. What are the other fault grounds?

Though not used very often, these are the other fault grounds:

• Adultery: This means sexual intercourse outside the marriage. You will have to prove that your husband 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: With this ground, 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 husband 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 the length of his sentence, not how much time he actually spent in prison.

18. 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 the divorce occurred in Massachusetts and you lived as a married couple in Massachusetts, regardless of where your husband 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 husband last lived together if either of you still lives in that county. If neither of you live in the county where you last lived together, you may file in the county where you live for convenience, or you may file in the county where he lives.

19. How do I start the divorce process?

You file the Complaint for Divorce and other documents at the court. If your Affidavit of Indigency shows you qualify, 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 (or constable) to give a copy of the complaint, the summons, and copies of other papers you filed to your spouse. When the sheriff does this, it is called "service of process," meaning that the sheriff has served the papers to the spouse. Make sure you give the sheriff a copy of your Affidavit of Indigency so the state can pay his fees. Before trial, either party may request that the court make temporary orders as to custody, child support, visitation, etc. (See Chapter 3 and Chapter 6.) Either of the parties can request a pre-trial conference though the court may likely schedule one on its own, and then there is a final hearing, the trial. (See Chapters 9 and 12.)

20. When should I go to court?

Each case is unique, and there are a lot of things to consider in deciding when you should go to court. Going to court too quickly can create more litigation. Waiting too long can create problems too. In making your decision to live apart, to divorce or to fight about certain issues, weigh the price you and your children will pay with your time, emotional pain and money. You should gather information, get legal advice, and talk it over with people you trust, but in the end, only you know what is best in your situation. When children are involved, your relationship with your husband does not end with the separation or divorce. You will most likely continue to have contact with him regarding support, visitation, and other parental responsibilities.If it is appropriate in your situation, keep the lines of communication open for the sake of your children, but only if it is safe to do so. If possible, put your children's welfare ahead of continuing conflicts.

21. Can I keep my address a secret?

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 judge why it is necessary that your abuser not find out where you live. (See our sample of a Motion to Impound Address and attached Affidavit.)

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

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 backlogged the court is;
• whether your spouse contests or disagrees with any part of the divorce; and
• whether there are temporary orders or negotiations.

There is generally a twenty-one day waiting period after the defendant has been given his 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 if you cannot locate him, you will have to serve him by an alternate method such as service by publication in the newspaper. This kind of service can hold things up a bit. There is no hard and fast rule as to how long it takes to complete the process and be granted a divorce.

23. How much will my divorce cost?

There is a fee to file a divorce, and to get a summons. In 2006, the filing fee is $200.00 with a $15.00 surcharge, so the total filing fee is $215.00.Additionally, a summons costs $5.00. If your spouse lives far away, then the cost of notifying your spouse (called service of process), depends on what the service fee is in the place where you want the summons to be served.

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

Yes, if you receive TAFDC or your income is less than 125% of the federal poverty level, or if you can show that paying the filing fee would deprive you or your dependents of the necessities of life, including food, shelter and clothing, you may file an Affidavit of Indigency. The court may waive the filing fee and you will not have to pay the costs for "service of process." (See Question 7.)

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

Sometimes. The court can require your spouse to pay your 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. This rule is found at Massachusetts Rules of Domestic Relations Procedure Supplemental Rule 406. Your local law library should be able to help you find it.

26. What about help from legal services?

If you have a low household income, and live in Berkshire, Hampden, Hampshire or Franklin County you may be eligible for help through Western Massachusetts Legal Services’, Inc. If you live elsewhere in Massachusetts, you should consult the “Find Legal Aid” section of www.masslegalhelp.org or check your local phone book. When you call, they will screen your situation for eligibility; however, the number of divorces that can be handled by legal services programs is limited. You may be referred to a private attorney who provides free representation (these lawyers are called pro bono lawyers). Your local legal services program may be able to put you in touch with pro bono services.Throughout Massachusetts, pro bono lawyers are available through the Volunteer Lawyers Service, a program of the Massachusetts Justice Project.In Boston, there is the Volunteer Lawyer Project (VLP) of the Boston Bar Association.To learn more about VLP, go to: http://www.vlpnet.org For more information on the Volunteer Lawyer’s Service, you can call the following numbers: Holyoke, MA 413-533-2660 or toll free at 800-639-1209 Worcester, MA: 508-831-9888 or toll free at 888-427-8989

27. I am not eligible for legal services and I need a lawyer. What now?

If money is a concern for you, do not hesitate to tell the attorney right from the start. Try to find a private attorney who will agree to handle your case with little or no retainer. In certain cases, an attorney can seek attorneys’ fees from your husband. (See also 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.

28. 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.

29. Should I represent myself?

The ideal pro se divorce situation is one in which you and your spouse have no disputes regarding any issues. It is particularly appropriate to proceed pro se in cases where you and your spouse have been separated for some time, have already worked things out, and you are sure that he will not challenge the divorce.

30. Can someone help me represent myself?

Yes. Some women's centers and legal services offices offer a "do it yourself" divorce clinic to guide you in doing your 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 also has a family law section, where you may be able to find some of these books.

31. 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) from him or if there is any marital property which has not already been satisfactorily divided, you should 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.