Whether you live in Massachusetts or elsewhere, divorce for any married couple will accomplish two things: (1) severing the marital relationship, and (2) dividing assets and debts. If they have been married for a significant length of time and one of them will be unable to be self-supporting after the divorce, the issue of alimony may also arise. If there are minor children, they will also need to resolve issues of child custody, visitation, and support.
Residency and Where to File
To file for divorce in Massachusetts, one party must be a resident of the state for any period of time, if the grounds for divorce arose in Massachusetts. Otherwise, the party who files must be a resident for at least one year. You may file in the Probate Court in the county where you and your spouse last lived together. If neither of you still reside in that county, you may file in the county where either of you reside.
The most simple procedure is an uncontested divorce. This is where you and your spouse can reach an agreement about the division of your property, and, if you have any children, what arrangements will be made for them. You begin the uncontested no-fault divorce procedure by preparing a document called a Petition for Divorce, along with various other supporting documents. For an uncontested divorce, one of these documents will be a marital settlement agreement outlining the division of assets, and your agreement regarding any children. These documents are filed with the court, and copies of them are provided to your spouse. You will attend a court hearing, at which time the judge will make sure that all of your paperwork is in order, perhaps ask you a few questions, and enter your Judgment of Divorce.
Grounds for Divorce
Grounds for divorce are legally recognized reasons to get a divorce. This is the justification for severing the marital relationship. Massachusetts, like most states, has what are commonly called no-fault grounds for divorce, and several traditional fault-based grounds.
To get a no-fault divorce in Massachusetts you need to state in the Petition for Divorce that “there has been an irretrievable breakdown of the marriage.”
There are also several fault-based grounds for divorce: (1) adultery, (2) impotence, (3) desertion without support for 1 year, (4) alcoholism or drug abuse, (5) cruel and abusive treatment, (6) willful nonsupport, and (7) imprisonment for more than 5 years. However, in most cases, there is no reason to use any of these, since they add complexity to the process by requiring proof.
A divorce involves dividing property and debts between you and your spouse. Absent a property settlement agreement by the parties, the judge will divide the property after considering the following factors:
- the length of the marriage,
- the conduct of the parties during the marriage (although fault may not be considered if the parties use the no-fault grounds for divorce),
- each party’s age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities and needs,
- each party’s opportunity for future acquisition of capital assets and income,
- the amount and duration of alimony, if any,
- the present and future needs of the dependent children of the marriage, and
- each party’s contribution in the acquisition, preservation, or appreciation in value of their respective estates, and contribution as a homemaker to the family unit.
Alimony in Massachusetts
Alimony may be ordered if one spouse is in need of support and the other has the ability to pay. According to Massachusetts alimony law, absent an agreement of the parties, the form, amount, and duration of alimony is determined by the judge after consideration of the following factors:
- the length of the marriage,
- each party’s age and health,
- each party’s income, employment and employability, including employability through reasonable diligence and additional training, if necessary,
- each party’s economic and non-economic contribution to the marriage,
- the marital lifestyle and the ability of each party to maintain the marital lifestyle,
- any lost economic opportunity as a result of the marriage; and
- any other relevant factor.
Generally, alimony will not exceed the recipient’s need, or 30 to 35 per cent of the difference between the parties’ gross incomes. Deviation from these limits may only be ordered after considering the following factors:
- either party’s advanced age, chronic illness, or unusual health circumstances,
- tax considerations applicable to the parties;
- the cost of any health insurance the payor is providing for the recipient,
- the cost of any life insurance the payor has been ordered to secure for the benefit of the recipient spouse,
- any sources and amounts of unearned income, including capital gains, interest and dividends, annuity and investment income, from assets that were not allocated in the divorce,
- any significant premarital cohabitation that included economic partnership 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 be self-supporting, and
- any other relevant factor.
Child Custody in Massachusetts
If you and your spouse have any minor children, there will have to be a custody determination. Massachusetts child custody law refers to two types of custody, legal custody (concerning making major decisions regarding the child’s welfare), and physical custody (concerning the residence and supervision of the child). If custody is granted to one party, it is called sole custody. If granted to both parties, it is called shared custody. It comes down to figuring out how the children’s time will be divided between the parents, and how decisions will be made.
If you and your spouse cannot reach an agreement on custody, the judge will decide the issue. The Massachusetts custody law does not set forth specific factors for the judge to consider.
Child Support in Massachusetts
A decision must also be made about how the children will be financially supported. This almost always comes down to one parent paying money to the other. Child support is determined by taking into account the needs of the child, and each parent’s relative ability to meet those needs. This is determined by reference to the Massachusetts Child Support Guidelines.
If you and your spouse agree on the major issues, an uncontested divorce may be right for you. Otherwise, you can talk to an attorney to get advice or help filing for divorce with the LegalZoom personal legal plan.