Skylark Law & Mediation, PC

There are three different statutes in Massachusetts that provide grounds upon which the Probate & Family Court can grant you a divorce.

Fault Divorce:

Massachusetts General Laws Chapter 208 Section 1 authorizes the Courts in Massachusetts to grant divorces to residents of Massachusetts for a specific list of “fault” situations: adultery; impotence, desertion continued for one year; gross and confirmed habits of intoxication caused by voluntary and excessive use of intoxicating liquor, opium, or other drugs; cruel and abusive treatment; or, if a spouse being of sufficient ability, grossly or wantonly and cruelly refuses or neglects to provide suitable support and maintenance for the other spouse.

These are called “fault” divorces because obtaining a divorce for any of these reasons requires that you first prove that one spouse has caused the divorce by doing one of the things listed, i.e. it is “their fault” that the marriage has ended.

Your attorney can advise you as to the proper grounds for filing your divorce. However, it is unusual under the current state of Massachusetts law to file for “fault” divorces because they require this extra evidence of fault before a divorce can be granted. In the case of a divorce under “irretrievable breakdown” there is no need to make this extra showing to the Court.

No Fault Divorce:

Massachusetts General Laws Chapter 208 Section 1A and 1B authorize the Courts in Massachusetts to grant divorces to residents of Massachusetts for “an irretrievable breakdown of the marriage.” The irretrievable breakdown standard simply requires that the Court find that at least one of the parties in the marriage believes (subjectively) that their marriage is over and that there is no chance of reconciliation.  This is the more common standard used when filing for divorce.

Joint Petition for Divorce under Section 1A:

If both parties agree that there has been an irretrievable breakdown of the marriage and agree on all other issues related to their marriage, as described in a Separation Agreement, then you can file a Joint Petition for Divorce under the provisions of Section 1A. The Court will set a date and time for an uncontested divorce hearing, once you have filed a Joint Petition for Divorce, a certified copy of the Marriage Certificate, an Affidavit of Irretrievable Breakdown, a Certificate of Absolute Divorce or Annulment, a Separation Agreement, two Rule 401 Financial Statements, and two Certificates of Attendance at the Parents Apart Program (if there are minor children of the marriage).

In most cases, both you and your spouse must attend the uncontested divorce hearing and testify under oath that your marriage has suffered an irretrievable breakdown. The Judge will then issue Findings of Fact and if the Judge finds that your marriage is irretrievably broken down, then a Judgment of Divorce Nisi will issue after thirty (30) days, and it will become Absolute after a further ninety (90) days.

This means that if you file a Joint Petition for Divorce you are not legally and officially divorced until approximately 120 days after the divorce hearing date.

Complaint for Divorce under Section 1B:

If only one person in the marriage is ready to tell the Court that the marriage is over, or if you cannot agree with your spouse on other issues related to the divorce (such as the division of property, custody of children, amount of support, etc.), then you may have to file a Complaint for Divorce under Section 1B.  We encourage clients to explore other options before rushing to file, but in some cases it may be necessary.

Upon the filing of a Complaint for Divorce, the Court will issue a Divorce/Separate Support Summons form. This Summons form and a copy of the Complaint for Divorce must be “served” on your spouse as required by law, or your spouse may voluntarily agree to “accept service.” You should discuss with your attorney the best way to have the Summons form and Complaint for Divorce served in your case.

Along with the Summons, the Court will issue a Tracking Order. The Tracking Order tells you who your Judge will be for the entire length of your case, and designates a timeline for the completion of your case, currently fourteen (14) months. This means that the goal of the Court is to hold a trial on your case within fourteen months if you are unable to settle your case before that. If you settle your case within the first six (6) months then you are required to amend your Complaint to a Joint Petition for Divorce as described above.

Once the Complaint for Divorce is served, the litigation process is begun, and the Court expects you to begin preparing for a trial. At any point in this process you may settle your case. However, unlike when you are negotiating a Separation Agreement in anticipation of filing a Joint Petition, once a Complaint for Divorce is served either party may schedule Motions with the Court and make discovery requests. This process is discussed at further length below.

In addition to beginning the litigation process, immediately upon the filing of a Complaint for Divorce, the Plaintiff (person who filed the Complaint) is restrained from taking specific actions with respect to your assets and liabilities. Along with the Summons the Court will provide to you, a Notice to Plaintiff describing the Rule 411 Automatic Restraining Order. A sample Notice describing the Rule 411 Automatic Restraining Order is available here.

Upon the service of the Complaint and Summons on the other party (the Defendant), they too become restrained by Rule 411. Generally Rule 411 prohibits either party from
a. selling, hiding, encumbering or disposing of any personal property or real property in which either of you have an interest (except for in the case of specific exceptions),
b. incurring any further debt that would burden the credit of the other spouse (such as making charges on joint credit cards),
c. changing the beneficiary designation on any life insurance policy, pension or investment accounts, or
d. doing anything that changes your spouse or your children’s coverage under medical, dental, life, automobile or disability insurance.

There are exceptions to Rule 411 which you should discuss with your attorney. Do not violate the Automatic Restraining Order or the Court may, and most likely will, order you to undo whatever action you took and sanction you for violating the Restraining Order.

If you are served with a Complaint for Divorce you are required by the Court to file an Answer within twenty (20) days stating whether or not you agree with each allegation made in the Complaint for Divorce. In addition, you have the right to file a Counterclaim for Divorce and in many cases we recommend that a Defendant file a Counterclaim to inform the Court of their requests in the Divorce process and to reserve their right to proceed with the Divorce even if the Plaintiff changes their mind. If you are served with a Complaint for Divorce it is important that you consult with an Attorney as soon as possible so that an Answer is filed prior to the passage of the twenty (20) days. 

After the service of the Complaint for Divorce and filing of the Answer, you are required to exchange certain information with your spouse in order to allow you both the ability to make informed decisions regarding the settlement of your case. In addition, if you are unable to reach a settlement of your case, the documents and information produced during discovery will make up the evidence that you will present to the Judge at a trial. This process of exchanging information is called Discovery.

This process is very important because if you do not obtain enough information about the facts of your case, you will be unable to present a complete case to the Judge, and unable to evaluate intelligently settlement proposals made by your spouse. For example, if you do not have information about the value and extent of your spouse’s assets, you will not know whether or not you are receiving an equitable share of those assets.

The goal of discovery is full disclosure of all assets, liabilities, income and expenses. The process of disclosing this information begins with Rule 410 Mandatory Self-Disclosure and the Rule 401 Financial Statements, described further below.

The total length of time to complete discovery varies according to the complexity of the issues involved, the difficulty in obtaining the requested information, how hard the other side fights, and the need to obtain outside expert advice with regard to certain aspects of the case (such as real estate or pension appraisals or an evaluation of the parenting fitness of the parties by a Guardian Ad Litem).

Discovery can include written questions called Interrogatories, Requests for Production of documents, under oath examination of your spouse or third parties in Depositions, and Requests for Admissions. The type of discovery required for your case will depend on many factors and the specific facts of your case will dictate the amount of discovery needed. 

Supplemental Probate Court Rule 410 (“Mandatory Self-Disclosure”) provides that, within 45 days after the date of service of the Summons, each party must serve on the other party specific documents designed to disclose the basic financial information necessary to settle a divorce case. This includes tax returns for the past three years, last four (4) paycheck stubs, bank account statements, health insurance documentation, etc. A copy of Rule 410 is available here.

You should immediately gather these documents and provide them to your attorney so that they can be provided to the other side as required.

Supplemental Probate Court Rule 401 provides that, within 45 days after the date of service of the Summons, each party must serve on the other party a complete and accurate financial statement showing, insofar as possible, the assets, liabilities and current income and expenses of both parties and children involved in the case.

The form of the financial statement which each party must complete is dependent upon his or her income. A party whose income equal or exceeds $75,000.00 must complete the long form financial statement. A party whose income is less than $75,000.00 must complete the short form financial statement.

In the event a hearing on a motion for temporary orders or a pretrial conference is scheduled, financial statements by both parties shall be filed with the court and exchanged between the parties no later than two (2) business days prior to the hearing or the conference without the necessity of a request for such statements.

Either party may request a Financial Statement from the other every ninety (90) days and if such a written request is made, then a Financial Statement shall be filed within ten (10) days.

You should immediately begin working on your Financial Statement and provide a draft copy to your attorney. It is very important that you complete this document accurately, and completely. The Financial Statements are signed under the pains and penalties of perjury. The consequences to lying or filing an incomplete Financial Statement are significant, and could include a Judge finding you to be an unreliable witness at trial (i.e. take all relevant testimony from your spouse only). In addition, if a settlement is reached in your case and it is later discovered that a particular asset was left off your Financial Statement, the settlement could be voided for fraud.

You should take particular care in completing your Financial Statement and err on the side of including everything. If you are not sure if something belongs on a Financial Statement you should consult with your attorney. 

Once a Complaint for Divorce has been served, either party has the right to file a Motion with the Court, which is a written request that the Court Order that something happen in your case. These can include requests that the Court order a party to comply with discovery or requests that are specific to your unique situation.

Often it is necessary to ask the Court to make certain Temporary Orders, which are Orders that will allow you and your spouse to find a suitable temporary living situation while the divorce case is pending, including providing for how you will pay the bills, who will pay which bills, who the children will live with, etc. More specifically it is typical to request one or more of the following from the Court on a temporary basis: Physical and Legal Custody Orders; Visitation Orders; Other Parenting related Orders; Child Support Orders; Temporary Alimony Orders; Orders related to one spouse Vacating the Marital Home; Orders related to liquidating assets; andOrders related to maintaining bills.

These are just examples of the types of Motions that may be filed in your case. These specific Motions may not be necessary in your case, but various other Motions may be appropriate. It is generally the Court’s preference to maintain the status quo as much as possible during the divorce process. However, the Court will recognize changes that need to be made when the current living or financial arrangements could have a negative impact on your or your spouse’s financial future, or have a negative impact on the health, safety or welfare of you, your spouse, or the minor children.

These Temporary Orders will usually remain in effect until there is a final hearing or trial of your case, at which time the Court will issue more permanent orders. Temporary Orders can only be changed upon the showing of an emergency or a significant change in circumstances.

In most cases, both parties must be physically present in Court for all scheduled Court hearings especially any hearings on Motions having to do with custody or financial matters.

Child Support is the amount of money paid by one parent to the other parent for the support of the children’s expenses. Child Support is calculated using the Massachusetts Child Support Guidelines, which are updated every four years. The formula is usually presumptive, and can be calculated online using our Child Support Guidelines Worksheet here.

Alimony, also called spousal support, is paid by the higher income spouse (the spouse who has traditionally earned the majority of the income during the marriage) to the other spouse to allow them to continue to live in the lifestyle they have become accustomed during the marriage, assuming their is enough income to do so.

Until 2011, there was no formula enacted or endorsed by the Massachusetts Legislature or the Courts for the calculation of alimony. However, on September 26, 2011, Governor Deval Patrick signed into law The Alimony Reform Act of 2011, which becomes effective on March 1, 2012. The act provide for multiple types of alimony, and for maximum amounts and duration of alimony.

The 2011 law defines the maximum amount of Alimony:

Except for Reimbursement Alimony or circumstances warranting deviation for other forms of alimony, the amount of alimony should generally not exceed the recipient’s need or 30% to 35% of the difference between the parties gross incomes.

The 2011 law also limits the duration of General Term Alimony:

General Term Alimony Ends Upon:

• Remarriage of the recipient;
• Death of the recipient;
• Death of the payor (though the court may order life insurance or reasonable security for payment of sums due to the recipient in the event of the payor’s death during the alimony term);
• Except when the court finds that deviation is warranted, upon the expiration of the duration formula calculated above;
• Upon the cohabitation of the recipient spouse with another person for a continuous period of at least three months (may also result in suspension or reduction instead of termination;
• Upon the payor attaining the full retirement age when he or she is eligible for the old-age retirement benefit under the United States Old-Age, Disability, and Survivors Insurance Act, 42 U.S.C. 416.

The deviation factors which could result in a different amount or duration are:

• Advanced age; chronic illness; or unusual health circumstances of either party;
• Tax considerations applicable to the parties;
• Whether the payor spouse is providing health insurance and the cost of heath insurance for the recipient spouse;
• Whether the payor spouse has been ordered to secure life insurance for the benefit of the recipient spouse and the cost of such insurance;
• Sources and amounts of unearned income, including capital gains, interest and dividends, annuity and investment income from assets that were not allocated in the parties divorce;
• Significant premarital cohabitation that included economic partnership and/or marital separation of significant duration, each of which the court may consider in determining the length of the marriage;
• A party’s inability to provide for his or her own support by reason of physical or mental abuse by the payor;
• A party’s inability to provide for his or her own support by reason of a party’s deficiency’s of property, maintenance or employment opportunity; and
• Upon written findings, any other factor that the court deems relevant and material.

SAME-SEX DIVORCE TIP: There are two differences in how alimony may be calculated in a same-sex divorce case. The first difference is that the Section 34 Factors may not be applied the same way in a same-sex divorce case because same-sex marriage has only been available as a right since 2004. The “length of marriage” factor may be applied differently if the couple was together long before they had the right to marry in Massachusetts. This could also be an issue for couples who first lived together in a state where same-sex marriage was not legal but who then later moved to Massachusetts and got married.

Prior to 2013, the second difference in how alimony was calculated related to a taxation issue. On June 26, 2013, the Supreme Court of the United States declared in United States v. Windsor, that section 3 of DOMA (the “defense of marriage act”) is unconstitutional. Previously this section prevented federal agencies from treating same-sex marriages as marriages for benefits and tax purposes. The ruling in Windsor changed all this and for federal purposes marriages valid in Massachusetts are now also recognized by the federal government.

Alimony is therefore included as taxable income to the Recipient and tax deductible to the Payor, which is the same as how it’s treated for all other couples.  This changes for all divorcing couples in 2018 anyway with the Tax Reform which ended the tax deduction for alimony starting in 2019, except for cases settled prior to December 31, 2018.

You should consult an attorney if you have questions about the Section 34 factors or how these factors can be affected by issues unique to same-sex marriages. Click here for more information about gay & lesbian divorce in Massachusetts.

Same-Sex Massachusetts Divorce Website

Under Standing Order 2-16 of the Probate & Family Court, if you have any minor children at the time of the filing of your divorce case, you are required to attend the Court-sponsored Parents Apart education program before you can present either a settlement of your case, or present your case for trial.  The list of organizations that provide this training organized by by town, is available by clicking here.  While any of these programs will qualify we specifically recommend the programs run by The Divorce Center and MWI.  

You should immediately enroll in and attend this course because your case cannot end until you have completed the course, which consists of two 3 hour sessions. After completion of the program you will be provided with a golden Certificate of Completion, which you must provide to the Court. If you give this golden copy to your attorney, they can ensure that it is properly filed with the Court and this requirement fulfilled.

Approximately six (6) months after the filing of a Complaint for Divorce the Court will schedule a Pre-Trial Conference. If the Court does not automatically schedule this conference, then either party can request that a Pre-Trial conference be scheduled by filing a written request with the Court. The goal of a Pre-Trial Conference is to help the parties narrow the issues in their case prior to the scheduling of a trial and if possible settle the case.

At Skylark Law & Mediation, P.C. we believe that every case can be settled, and it is always our primary goal to settle your case. Since the majority of cases settle at the Pre-Trial Conference, this is an important turning point in your case. Upon the scheduling of the Pre-Trial Conference, the Court requires that the parties hold an in person Settlement Conference at least one week prior to the Conference, and that if the parties are unable to reach an agreement at the Settlement Conference, then both parties shall file a Pre-Trial Memorandum informing the Court of what issues they agree upon, and what issues they disagree upon. This is a lengthy document that your attorney will prepare for you, and which will address numerous issues including informing the Judge what witnesses you will call at trial, and what evidence you will present.

Prior to the Pre-Trial Conference, the Judge will review the Financial Statements of both parties, the Pre-Trial Memorandum of both parties and will sometimes allow oral argument on particular issues. The judge then provides feedback to the parties regarding how the court might decide their case if, after hearing all of the evidence at a trial, the Judge finds the facts of your case to be the same as those facts presented in the Pre-Trial Memoranda. Given this feedback from the Judge, we are often able to settle formerly disputed issues.

In many cases you will be asked to make a “business decision” and take into account not just the facts surrounding your case, but also the value of compromise in both ending litigation and in avoiding the cost of a trial. A divorce trial will be very expensive for both you and your spouse and can often cost more than $25,000.00 per party. That is why it is so important to be well-prepared for the Pre-Trial Conference and to listen carefully to the Judge at the Pre-Trial Conference. 

If you are unable to settle before, during or after the Pre-Trial Conference, trial is not your only option.  You may still want to consider if Mediation & Conciliation can help you settle.

If you and your spouse are able to reach a complete settlement, it will be reduced to a written Separation Agreement by your attorney. A Separation Agreement is lengthy and very specific as to the details of settlement in all aspects of your case. The Agreement is submitted to the Court for review by a Judge and must be approved by a Judge at a Court hearing. You and your Spouse will be required to attend that hearing in person.

The Judge will review the Financial Statements of the parties and the Separation Agreement and if the Court determines that the written Separation Agreement is fair and reasonable, especially to any minor children, the Court will incorporate the terms and conditions of the written Separation Agreement into its Judgment of Divorce Nisi.

When incorporated the terms and conditions of the Separation Agreement, the terms can either merge with or survive the Judgment. If the terms merge then they can be changed in the future upon a showing of a material change in circumstances (which would require the filing of a Complaint for Modification). Although the Court is very unlikely to change property division in the future, the Court upon a showing of a material change in circumstances could change orders relating to alimony (even if waived), health insurance, life insurance, retirement accounts, etc. Child related issues always merge, until the minor children become emancipated.

If the terms survive then they cannot be changed in the future except upon a showing of “countervailing equities.” This is a very slim chance that the Court will overturn a survived term, upon a showing that it is so egregious and unfair that the Court cannot uphold it, which was done in one particular case when alimony was waived permanently and survived, but the former spouse needed alimony or she would become a ward of the state because of a severe disability and the marriage had been a long-term marriage. It is important to note that it may not be appropriate in some circumstances to survive alimony in a long-term marriage, even if there is not to be a current alimony order.

If the parties are unable to come to agreement at the Pre-Trial Conference, the Court then assigns a Trial Date to the case. This date will be approximately three (3) to six (6) months after the Pre-Trial Conference date and is dependent upon the number of days needed for the Trial and the Judge’s calendar. 

One of the most important legal distinctions for clients to understand when signing a Divorce Agreement (also commonly called a Separation Agreement) is the difference between merger and survival. The distinction between these two designations could mean all the difference in whether an Agreement is fair and reasonable or not. It can affect whether or not you will have to return to court in the future, and could determine issues as important as whether or not alimony can be changed (increased, decreased, added, or eliminated) in the future.

The technical legal definitions of these terms are as follows:

If a portion of the Separation Agreement merges then this means that said portion becomes absorbed into the Judgment of Divorce, and does not exist as a separate entity. Any portion of an Agreement that merges with the Judgment of Divorce is open to modification if one party can show that there has been a significant and material change in circumstances, and that change warrants a change in the Agreement.

If a portion of the Separation Agreement survives then this means that said portion does not combine with the Judgment of Divorce, and continues to exist as a separate contract between the parties. Any portion of an Agreement that survives the Judgment of Divorce is NOT open to modification.

In simple terms:

Merged agreements can be changed in the future.

Survived agreements can NOT be changed in the future.

Although it is very unusual to have property divisions re-opened by the Court, the safest way to ensure that it cannot be is to clearly state that all property division sections survive the Judgment of Divorce. The issue of merging or surviving alimony is often more complicated. For example, while the parties can waive alimony as part of an agreement, that waiver is not forever binding unless the parties also agree to survive that agreement. Obviously this can be a significant difference if there is a change in the future that would warrant an award of alimony (such as one party becoming disabled). We encourage clients to give a lot of thought to this distinction before making a decision on this issue because it could have a significant impact on their future finances. 

There are two types of provisions that cannot survive a Judgment of Divorce but must be merged. These are provisions relating to child custody/visitation and child support.

The Court retains jurisdiction over provisions relating to child custody/visitation to protect the children. For example, in the event one party becomes unfit to parent the children it would be detrimental to the children to have that provision survive and be unchangeable. Although there is another method by which a parent can give up their parental rights permanently (through a Waiver of Parental Rights), there is not any way that a party can guarantee they will keep their rights forever. The right to be custodial parent will always be subject to your continued fitness to parent your children.

Although typically paid to the custodial parent, child support is also for the benefit of the child, not the parent. Therefore, you cannot give away your child’s right to seek greater child support if there is a material and significant change in circumstances. Accordingly, the court requires that child support provisions merge as well.

These are the only two types of provisions that must be merged in any case involving children. There may be other provisions, however, that in certain circumstances the Court may require you to merge. One example of this is in very long-term marriages (such as a 30 year marriage or longer), the Court may refuse to allow parties to survive a waiver of alimony. Some Judges have expressed the opinion that it is not fair and reasonable to completely separate the finances of parties who have been married for such a long time. This could depend on other circumstances in the case as well.

At a trial of your case, both parties will have the opportunity to present evidence and testimony to the Judge. Because the Judge is limited to hearing only the evidence that is admissible under the Rules of evidence, there may be facts about your case that the Judge is not able to hear about. At the conclusion of hearing admissible evidence, your attorney will submit proposed Findings of Fact and a proposed Judgment to the Judge, which will include all of the decisions that you want the Judge to make based on the evidence presented.

After reviewing both parties’ proposals and the evidence, the Court will issue a Judgment of Divorce Nisi and it will become Absolute after a further ninety (90) days. In addition to any child related issues, the Court will determine the division of marital property, debts, income and expenses. The Court is guided by M.G.L. c. 208 Section 34. in dividing personal property and/or assigning alimony. Chapter 208 Section 34 contains specific factors that the Court must consider in reaching its decision. You should provide your attorney with a written narrative describing how each of these factors apply to your case.

Once a Judgment is made, either party may appeal the judge’s decision, but there are very specific deadlines about when a Notice of Appeal must be filed. Most attorneys’ standard Retainer Agreement does not include representation for an appeal. If you want to appeal a decision in your case we will have to work out a new Agreement. Due to the discretion given to trial Judges in deciding what a fair and reasonable result Judgment is, it is very difficult to appeal a Judgment of Divorce, once made. 

Whether or not you can keep your health insurance after the divorce will depend on two factors, one of which is in your control and one of which is not. If you are currently on your spouse’s health insurance, then they are required by the Rule 411 Automatic Restraining Order to maintain you on your health insurance during the pendency of the Divorce case. However, at the end of the case when you are divorced your status as an eligible dependent on their plan may change.

If your spouse’s employer participates in a self-insured plan (usually only the case with very large employers), then the plan is covered by Federal law and not State law, in which case the employer can ignore the Massachusetts’ law requiring eligibility of ex-spouses. This means that if your spouse’s employer has a self-insured plan then no matter what the Court order states you will likely be terminated from your spouse’s health insurance upon the divorce. At that time you will be eligible for COBRA, which is a program that allows for continuation of health insurance coverage for a set period of time so long as you pay 102% of the full premium.

If, however, your spouse’s plan is not a self-insured plan then you will be eligible to continue coverage so long as you pay attention to the second factor, which is whether or not your Judgment of Divorce includes language requiring coverage. It is very important to consult with an attorney regarding the proper language to include in a Divorce Agreement to ensure that you will be eligible to continue to health insurance, if your spouse’s employer allows for that option.

For more information on how to maintain or find health insurance after a divorce, check out this brochure prepared and distributed by the Massachusetts Attorney General’s Office and Health Law Advocates entitled Staying Healthy: A Guide to Keeping Health Insurance After Divorce.

There are two costs of staying on an ex-spouse’s insurance. The first is the actual cost of the plan. If the plan participant would qualify for a lower cost plan, for instance if the plan participant is single with no children, then the “additional cost” must be paid by either the plan participant or their ex-spouse. Usually the ex-spouse seeking this coverage will pay the “additional cost” but this must be defined in a court order or agreement.

In addition, the IRS defines excludible fringe benefit costs to include only costs for spouses and other dependents. Ex-spouse coverage is not excludable and is therefore a taxable benefit. Although often overlooked by employers, many employers have started to treat these ongoing benefits to ex-spouses as taxable income to the employee. For more information about the taxation of health insurance benefits read the following article: Health Insurance Taxation Issues Post Divorce by Justin Kelsey and Chris Chen.