Divorce Law FAQs
What is the Process for Divorce in Massachusetts?
All divorces in Massachusetts are now handled on a “no-fault” basis, although grounds for a “fault” divorce still exist on the books. What this means is that all either party has to establish in order to attain a divorce is to assert an “irretrievable breakdown of the marriage”. This further means that if one party wants a divorce, they will get it, and even if the other party does not wish it.
This is not to say that the issues formerly involved in a fault divorce do not still come into play. To the contrary, the statutes apply numerous factors upon which to make decisions about property division and child custody – the most prominent and common of which are contribution to the marriage and conduct during the marriage. While we start from a 50-50 split in property division, such a result is not automatic – instead, the law applies “equitable (fair) division” and application of the various statutory factors can move division off the 50-50 mark.
The divorce case is commenced by the filing of the complaint for divorce, along with a certified copy of the marriage certificate. It does not matter where you are married as long as you lived as spouses in Massachusetts. If the parties can find themselves in agreement up front, they can file a joint petition, along with a Separation or Divorce Agreement, and the process can be handled relatively quickly and inexpensively. If they are not in agreement, the case commences by one party filing the complaint and serving the other with a copy of that complaint. The next usual step is to fairly quickly get into court on a motion for temporary orders, designed to temporarily arrange property matters between the two parties and to address issues surrounding the children until the case is fully resolved. During the course of the case, the parties can come to court as needed for other motions for temporary orders on various issues. The only mandatory court hearing will be the pretrial conference, which will occur approximately 6–8 months out from the date of filing. Prior to that conference, the parties are supposed to meet, with their attorneys if they have them, and trying to settle the case or at least narrow the issues that need to be tried (a/k/a “the 4-way meeting”). Then both a written and oral presentation will be made to the court. The judge will most likely give you his or her two cents on the issues that are at hand and how they may play out a trial. What is said at this conference should be heeded very carefully, as it is designed to push the parties towards agreement rather than face the expenses and possible embarrassments of trial. If the case does not settle, it will be tried in a manner similar to other civil cases, and the judge will be left to decide all the issues that remain unresolved. At anytime in the process, the parties may come to an agreement, putting that agreement into a formal written Separation or Divorce Agreement, and present it to the Court for approval. The Court will actively encourage such a resolution.
If there are children under the age of 18 involved, at some point prior to the approval of an agreement or trial, the parties will have to attend a parents’ education class.
Once a divorce agreement is approved or a divorce judgment is entered, the parties will have to wait 90–120 days before they would be legally able to remarry.
What is the Law About Alimony in Massachusetts?
In 2013, the Massachusetts alimony law was significantly changed. The basics did not change: a) the various factors that are applied to determine if an award of alimony is warranted, and b) the interaction of alimony with child support, most significantly the prohibition against double-dipping. The changes were to a) create categories of alimony (what used to be simply “alimony” now being “general” alimony), b) impose time limits on general alimony, and c) allow for alimony to be terminated or reduced upon proof of co-habitation, finally recognizing that reality.
- General – Alimony as commonly thought of, intended to harmonize economic disparity between spouses based on various criteria, the most prominent being present and future earning capacity, health, education and vocational capabilities. The statute now says this can be a maximum of 35% of the difference between gross incomes, with 1/3 the difference being the common maximum.
- Reimbursement – A short term or lump sum payment intended to compensate for one spouse having paid the educational or professional training costs of the other.
- Transitional and Rehabilitative – Closely related, short term or lump sum payments to allow one spouse who has been out of the workforce to get back on his or her feet.
- Time Limits:
- General alimony now has a sliding scale of time limits for marriages between more than 5 years and less than 20 years, which result in payments for 40%, 60% or 80% of the months of the marriage. Marriages over 20 years still have no set time limit, but now are limited to retirement age (age 67). Alimony is no longer forever.
- The other categories have maximums of 5 years if such alimony is to be paid in installments.
By virtue of a change in Federal tax law in 2018, alimony is no longer taxable to one party and deductible by the other. It is now treated like child support, neither income nor deductible. The full impact of this remains to be seen, but one may be the courts using a maximum percentage of the difference between incomes well below 1/3, to achieve a similar end net result that existed when taxation was involved.