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How do we file a Joint Petition 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.

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 the irretrievable breakdown of the marriage 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?

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.

How much does it cost to file a Joint Petition 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).

Case
Filing Fee
Surcharge
Summons
Deputy Sheriff
or Constable Costs
Divorce $200 $15 not applicable not applicable

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 an Affidavit of Indigency form. This form asks 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. There are spaces on the Affidavit where you can write this.

Filing a Joint Petition for Divorce

  1. Write out a separation agreement with your spouse that shows how you have agreed to divide your responsibilities for your children and the things you own.
  2. Get the separation agreement notarized.
    You need to have the separation agreement notarized (this means, have a person certified as a notary public witness your signing of the agreement). Fill out the agreement, but wait until you go to the notary to sign it. You can find a notary public in city and town clerks’ offices, local banks, real estate offices, lawyers’ offices, and travel agencies. In Massachusetts, notaries may charge no more than $1.25 for notarizing a document.
  3. Write out an affidavit of irretrievable breakdown of the marriage that says your marriage has broken down and cannot continue. Your affidavit has to say that you swear what you are saying is true.
  4. Fill out the Joint Petition for Divorce
  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.
  8. Take your notarized separation agreement, your affidavit of irretrievable breakdown, a certified copy of your marriage certificate, your Certificate of Absolute Divorce or Annulment form, and your Joint Petition to the clerk's office in the Probate and Family Court and ask to file. 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. When you file the petition:
    1. Fill out an Affidavit of Indigency form if you cannot pay the costs to file the case. 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. The Court may require both parties to file an Affidavit of Indigency in order to waive the filing fee.

How long will it take?

Joint Petitions for Divorce are scheduled for hearing within 30 days of filing all of the documents described above. In addition to the joint petition, affidavit, and separation agreement, the parties must file financial statements before the case can be scheduled for a final hearing.

What happens after I file?

After you file, the court schedules the final hearing which is within 30 days of filing all of the required documents.

What happens at the final hearing?

At the final hearing, you present your affidavit of irretrievable breakdown of the marriage and your separation agreement to the judge. You and your spouse must show the judge in the affidavit that the marriage has broken down. You must show the judge that the agreement is fair and reasonable about custody, child support, alimony and dividing your property. At the hearing you ask the judge to approve the agreement and "incorporate" it in the divorce judgment. "Incorporating" the agreement in the divorce means that the judge grants the divorce and orders you and your spouse to obey the agreement.

The divorce that the judge grants is called a "Judgment of Divorce Nisi."

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 August 2013


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