Residency and Filing Needs
There are some aspects of divorce in Massachusetts that you need to know about before proceeding with anything. First off, if one spouse intends to file, that spouse will then be called the ‘Petitioner’ (no-fault) or ‘Plaintiff.’ The other spouse will be called the ‘Respondent’ (no-fault) or ‘Plaintiff’ in the matter.
Once divorce is eminent, there’s one requirement in the state of Massachusetts that needs to be met before filing.
• Either party must be a Massachusetts resident prior to filing for divorce if grounds for divorce occurred inside the State; if grounds occurred outside of the State, a 1-year residency requirement needs to be met on one or both spouses.
Reasons for Divorce in Massachusetts
There are many reasons for it, but for the most part the court separates all reasons into two categories:
• No-Fault Divorce
• Fault Divorce
“No-Fault” basically can mean one thing –
1) Both Parties Must Have Reason to Believe That There is an Irretrievable Breakdown of the Marriage Followed by a Signed Petition for Divorce
“Fault” divorce in Massachusetts, however, is an entirely different situation.
Grounds for that divorce can include one or more of these as determined by a court of law:
• Willful Abandonment for at Least One Year
• Willful Denial of Marital Duties, Responsibilities and/or Obligations
• Evidence of Alcohol and/or Drug Abuse
• Cruel and Abusive Treatment
Both “No-Fault” and “Fault” divorce have separate stipulations that can affect child custody.
The Definition of “Legal Separation” Versus “Divorce”
Of course, both parties to a marriage may elect to “legally separate” instead of proceed through a divorce. What’s the difference?
A legal separation is essentially both parties agreeing to go their separate ways without dissolving the marriage. There are many reasons for doing this, one being the need to retain certain benefits within the marriage agreement that would otherwise be discontinued upon a divorce. For instance: medical insurance.
Typically, though, a legal separation does lead to a divorce agreement, in which case all grounds for divorce move forward, as well as the marriage then becomes dissolved in a court of law along with any other benefits and assets, questions of child custody, parenting time, and support (if children are in fact present).
The Primary Documents For a Divorce in Massachusetts
Ten or twenty documents may be included in the proceeding, not limited to these:
• Joint Affidavit Under M.G.L.Ch 208, Sec. 1A
• Marital Settlement Agreement
• Financial Statement
• Order for Support
• Health Insurance, and Income Assignment
• Request for Trial – Pre-Trial Assignment
• Complaint for Divorce, Or Petition for Divorce
• Judgment of Divorce
Divorce in Massachusetts : Property Distribution
When it comes to divorce in Massachusetts, it’s important to know that the state favors “equitable distribution.” This simply means that all assets are divided equally among both parties regardless of either party’s wishes. Sometimes, though, this doesn’t necessarily mean that “equitable” will be equal. Rather, the word fair is more the proper term to be used when dealing with property distribution.
Typically the court will encourage both the Petitioner and Respondent to come to an agreement about property distribution. If there’s no agreement, the court will decide.
In addition, the court may also award the wife her former or maiden name upon agreement of the divorce.
Divorce in Massachusetts : On the Subject of Spousal Support
This issue may only be relevant if the court or both parties see a need for either party to support the other financially for any reason either on a temporary or permanent basis.
Divorce in Massachusetts : Dealing With Child Custody
Generally speaking, parents can come to an agreement on this matter regarding divorce in Massachusetts in several ways:
• Joint Physical Custody
• Sole Physical Custody
• Joint Legal Custody
• Sole Physical Custody
“Joint Physical Custody” is essentially sharing custody of the child(ren) in terms of where the child(ren) may live: either in mother’s residence, or father’s residence. Child(ren) retains two addresses. Both parties are equally responsible for the well-being of the child(ren) as well as for the education of the child(ren).
“Sole Physical Custody” is when one party retains physical custody of child(ren) and the other party retains “Visitation Rights.”
“Joint Legal Custody” is when both parents share the right to make important decisions in the life/lives of the child(ren), which may include legal name, lifestyle, needs, etc. etc.
“Sole Legal Custody” is when only one parent retains the right to make important decisions in the life/lives of the child(ren).
Divorce in Massachusetts : How to Determine Child Support If Necessary
Typically, the non-custodial parent pays child support. The Percentage of Income Formula is employed to determine the amount. By combining W2’s and other worksheets, an amount is determined that would best suit the needs of the child(ren) without unfavorable financial problems on the non-custodial party.
Generally speaking, both parties may agree to an amount. But in the event that a Petitioner and Respondent don’t, the court may utilize state support guidelines to arrive to a decision as to how much support is necessary for the child(ren).