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How do I file for divorce?

 

To get a divorce, you can file:

  • Complaint for Divorce, if you are the only one who wants a divorce
  • Joint Petition for Divorce, if you and your spouse want to file a "no fault" divorce together. If you and your spouse file a joint petition, you also need to file an affidavit that your marriage has broken down and cannot continue (called an affidavit of irretrievable breakdown of the marriage) and a notarized separation agreement.

File a Complaint for Divorce if you are the only spouse that wants the divorce.

Can I file in Massachusetts?

You can file for divorce in Massachusetts if:

  • you have lived in the state for a year, or
  • you lived together as a married couple in Massachusetts and what happened to cause the divorce (the "grounds" for divorce) happened in Massachusetts.

If either of these two things is true, then you can file for divorce in Massachusetts, even if your spouse lives in another state, or you do not know where he lives.

What court do I file in?

There is a Probate and Family Court in each county in Massachusetts. You can file for divorce in the Probate and Family Court in the county where you live or in the Probate and Family Court in the county where your spouse lives. However, if your spouse still lives in the county where you last lived together, you have to file for divorce in the Probate and Family Court in that county.

How long will it take?

The court has a tracking system for all types of cases, including divorces. Under the tracking system, divorces are assigned to the 14 Month Track. That means that divorces should go to trial, be settled, or dismissed within 14 months.

How much does it cost to file a Complaint for Divorce?

The Probate and Family Court charges fees for filing and handling certain documents. Check out the Probate and Family Court Department Uniform Fee Schedule to find out how much it will cost. As of July 9, 2012, it cost $220 to file a divorce case ($200 filing fee + $15 surcharge + $5 for a summons). There are also fees to have a deputy sheriff or constable serve the papers on your spouse.

Case
Filing Fee
Surcharge
Summons
Deputy Sheriff
or Constable Costs
Divorce $200 $15 $5 Varies

What if I cannot afford to pay the court fees?

You do not have to pay these fees if:

  • you get any kind of public benefits (welfare, Food Stamps, etc.); or
  • your income is less than 125% of the federal poverty level; or
  • you can show that paying the fees would make it hard for you to pay your rent or mortgage or buy food or clothing.

If you cannot pay the fees, ask for the Affidavit of Indigency and Supplement to the Affidavit of Indigency forms. These forms ask the court to let you file without paying the fees. This is called a "fee waiver." The form also asks the court to order the state to pay the deputy sheriff or constable to serve the court papers.

You will need to write your income (how much money you get every month) on the Affidavit. Write down all the fees that you need help with: filing fees, the costs of getting the deputy sheriff or constable to serve the papers, and any other costs that you need covered. The Affidavit form has spaces where you can write this information. The court may ask you for documents showing why you need the court to pay your costs.

Can I keep my address secret?

Yes. You can keep your address secret from your spouse if you need to do this to stay safe. File a motion that asks the court to "impound" (hide) your address. Write on the motion form why it is not safe for your spouse to find out where you live. Look at a sample Motion to Impound Address and attached Affidavit.

Filing a Complaint for Divorce

  1. Choose a "grounds" (legal reason) for your divorce. One grounds for getting divorced is called "Irretrievable Breakdown of the Marriage." It means that you do not get along with your spouse and you do not want to be married anymore. Simply put: the marriage is broken down and cannot be fixed.
  2. Get the correct form and instructions for the kind of divorce you need.
    1. If your grounds for divorce is "Irretrievable Breakdown of the Marriage", get the form Complaint for Divorce Pursuant to G.L. c. 208, Section 1B, and instructions from the Probate and Family Court website or from any probate and family court in Massachusetts.
    2. If you and your spouse are filing the divorce together because you agree that there has been an "Irretrievable Breakdown of the Marriage," get the form Joint Petition for Divorce Pursuant to G.L. c. 208, Section 1A, and instructions from the Probate and Family Court website or from any probate and family court in Massachusetts. See How Do We File a Joint Petition for Divorce.
    3. If your grounds for divorce is other than irretrievable breakdown of the marriage, you need the form Complaint for Divorce and instructions on the Probate and Family Court website or from any probate and family court in Massachusetts.
    4. If you need child support you will also need a copy of the Child Support Guidelines Worksheet.
  3. Use the sample Complaint for Divorce under G.L. c. 208, Section 1B or a sample Complaint for Divorce to help you fill in the form you need. (See samples?)
  4. Check out the Probate and Family Court Department Uniform Fee Schedule to find out how much it will cost. As of July 9, 2012, it cost $220 to file a divorce case ($200 filing fee + $15 surcharge + $5 for a summons). There are also fees, about $35-$45 to have a deputy sheriff or constable serve the papers on your spouse. 
  5. Get a certified copy of your marriage certificate.
  6. If you and your spouse have children together,
    1. fill out an Affidavit of Care and Custody form.
    2. If you need child support, fill out the Child Support Guidelines Worksheet.
  7. Fill out a Certificate of Absolute Divorce or Annulment Statistical Information form.  See the instructions.
  8. File the Complaint. Take your Complaint for Divorce, a certified copy of your marriage certificate, and your Certificate of Absolute Divorce or Annulment form to the clerk's office in the Probate and Family Court. Ask the clerk to file it. If you filled out the Affidavit of Care and Custody or the Child Support Guidelines worksheet, also remember to give these to the clerk to file. If your spouse still lives in the county where you last lived together, you have to file for divorce in the Probate and Family Court in that county. If your spouse has moved out of that county, then you can file in the county where you live or in the county where your spouse lives now. When you file the Complaint and other documents:
    1. Fill out the Affidavit of Indigency and Supplement to the Affidavit of Indigency forms if you cannot pay for a summons or the cost or the costs to file the case and serve the papers. You only have to fill out the Supplement if you check box C on the Affidavit. If you can check either box A or box B on the form, check the box, the clerk will approve the form, stamp it, and give you a copy. This means the court will cover your costs.
    2. File a motion to "impound" your address if you need to keep your address secret from your spouse to stay safe. Write on the motion form why it is not safe for your spouse to find out where you live. Look at a sample Motion to Impound Address and attached Affidavit.
    3. File a motion for temporary orders if you need the court to order something right away (like child support or custody, or that your spouse has to let you stay in the house). File the motion when you file the complaint and Affidavit of Indigency. Ask the clerk for a date for a hearing on your motion. Write the date on the motion form. There is a place on the form to put the date.You can also file a motion later, if you need to. Read more about this in Chapter 7 Custody and Chapter 8 Visitation.
  9. Serve the papers: The clerk will give you a Summons. This is an official paper that tells your spouse when he must file his Answer to your case. The court can only decide your case after your spouse is served with the Summons. Bring or send the Summons and a copy of all the papers that you filed to a sheriff or constable to deliver to your spouse. If the court approved your Affidavit of Indigency, use a deputy sheriff to serve the papers. Be sure to give a copy of the Affidavit of Indigency to the deputy sheriff so the state can pay his or her fees. When the deputy sheriff gives the papers to your spouse, it is called "service of process."
  10. Wait for the sheriff or constable to return the Summons and "Proof of Service" to you. After the sheriff or constable serves the papers, he or she returns the original Summons to you. On the summons the sheriff or constable fills out, dates, and signs the section called "Proof of Service". Remind the deputy sheriff or constable to send the summons with the "proof of service" back to you.
  11. Make a "return of service" Return the signed original Summons to the court. This is called making "return of service." Be sure to make a copy of the signed original summons for your records.

What happens after I return the Summons to the court?

You may have to wait some time before you get a trial date. The time you have to wait before you get a trial date, depends on how you file for divorce:

The reason (or "grounds") you have for getting a divorce make a difference to what happens after you file your Complaint. It also makes a difference if your spouse files an Answer to your Complaint.

If you filed a complaint for "fault" divorce

when you return the summons to the court, the court clerk looks at the case to see if any court date has been scheduled. If no court date has been scheduled, the clerk will schedule; a "Case Management Conference" and send you notice of it. The Case Management Conference will be at least 30 days after you file the return of service.

At the Case Management Conference, the next court date will be assigned or the judge can hear the case and make a decision if the case is uncontested.

If you filed a complaint for a "no fault" divorce

(a complaint where you say that the marriage has irretrievably broken down), the court clerk looks at the case 120 days after you filed the case to see if any court date has been scheduled. If the return of service or an answer has been filed, but no court date has been scheduled, the clerk will schedule a "Case Management Conference" and send you notice of it. The Case Management Conference will be at least 30 days after you file the return of service.

At the Case Management Conference, the next court date will be assigned. If you filed a complaint for a "no fault" divorce, you must wait at least 6 months for a hearing.

If your spouse files an Answer, and no future court date has been scheduled, the court will schedule a Case Management Conference to talk about your case.

If your spouse does not file an Answer, the court will schedule a Case Management Conference to talk about your case. The court will only do this if you have returned the summons to the court.

What happens at a Case Management Conference?

At a Case Management Conference, the judge can hear the divorce case and grant the divorce if your spouse has not filed an Answer to your case or if you and your spouse have settled the case. "Settling" means that the two of you have agreed in writing about all the things that must be decided in a divorce case, like who will have custody and how much support for you, how much support for your children, what kind of health insurance you or your children should have and who should pay for it, and how your property will be divided.

If the court does not grant the divorce at the Case Management Conference, the next court date must be assigned. The next court date could be a Pre-Trial Conference or a trial date.

Going to trial – Getting a Judgment of Divorce

There will be a final hearing, also called a trial. At the trial the judge will decide your divorce case. Even at a trial, the parties can settle the case with a written agreement that they sign and ask the judge to approve. After your trial if the court grants your divorce, it will issue what is called a "Judgment of Divorce Nisi." If the trial took a day or less, the judge must issue the judgment within 30 days of the trial.

Your divorce will become "absolute" (final) 90 days after Judgment of Divorce Nisi.


Produced by an AmeriCorps Project of Western Massachusetts Legal Services updated and revised Massachusetts Law Reform Institute
Last updated April 2014


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