Monday, October 5, 2015

Massachusetts Divorce in a Nutshell

The process of divorce can be an extremely difficult and traumatic experience, emotionally and financially. To add to that, divorce necessitates decisions about almost every major aspect of your life including housing, employment, your children, health insurance, retirement taxes, etc. In fact, it is hard to imagine other times in one's life when a person has to make so many major life decisions, often while in a state of depression, anxiety, shock and/or anger.

Even if you are proceeding with a mediated divorce, understanding the divorce process and options for resolving your divorce is at least one step towards making the divorce process easier. What follows are some facts and information that will help you get the lay of the land if you are going through or contemplating a divorce and considering mediation.

1.  Massachusetts is a "no-fault" state. This means that a person does not have to find or prove fault with his or her spouse to get divorced. It is enough that one person has concluded that the marriage has irretrievably broken down. As a practical matter, what this means is that neither party can prevent the divorce from happening. That is different, however, from the issues of what the custodial and financial terms will be. That will be governed either by the agreement of the parties or the judgment of the court if the parties do not agree.

2.  In most cases the conduct of the parties will not be particularly relevant or important to the resolution of the divorce. Except in cases where there has been financial misconduct or misconduct which affects the children, the court will not be particularly interested in the conduct of the parties. The court is primarily interested in dealing with the finances of the parties and dealing with parenting issues.

3.  A divorce can be started in two ways. A "1B" divorce (1B stands for the section of General Laws chapter 208 covering this area of law) is commenced when one party files a Complaint for Divorce in the Probate and Family Court. Typically, a copy of the complaint is then served upon the spouse by sheriff (unless he or she agrees to voluntarily accept service) and the spouse has 20 days to file an answer.

4.  A "1A" divorce is also known as a joint petition for divorce or an uncontested divorce. This action is filed by both parties together and must be filed with a signed divorce agreement (often known as a "Separation Agreement"). The agreement and petition are filed with various other court documents including a request for an uncontested hearing.

5.  Once a divorce action is filed, there is an automatic restraining order against dissipation or transfer of assets or insurances. This means that after the divorce is filed, neither party can move, transfer, sell, assign or do anything with marital assets and with any insurance coverages without the consent of the other person or permission of the court.

6.  As part of the divorce process, you will need to fill out a financial statement which lists your income, expenses, assets and liabilities. This form is extremely important and should be as accurate as possible. If you earn over $75,000.00 per year, you will need to fill out a long form financial statement. Otherwise you would fill out the short form. The divorce process will often also include a "discovery process" in which the attorneys will send out requests for certain documents and interrogatories (written questions) pertaining to issues relevant to the divorce. In mediation, the "discovery" process is voluntary and by agreement.

7.  Sometimes, if there is an immediate need, one of the parties will bring a Motion for Temporary Orders. This type of motion often involves a request that the court set a child support amount, alimony, health insurance and custodial arrangements pending a final hearing. If the parties are not able to resolve these issues on their own, the matter will be heard by a judge and the judge will enter a temporary order pending a final judgment of divorce.

8.  In Massachusetts, the level of child support is governed by the Massachusetts Child Support Guidelines. These Guidelines provide a formula for calculating what amount must be paid. The Guidelines technically do not apply to situations where the combined income is over $250,000.00. That does not mean that there is no child support in those cases, it just means that the amount of child support is not necessarily dictated by the Child Support Guidelines. When going to court, if there are children the court will always need to see the Child Support Guidelines Worksheet.  The parties can however deviate from the Guidelines.

9.  Alimony refers to spousal support. The divorcing couple must always inform the court whether they wish to have alimony or whether they waive it. Alimony is the payment from one spouse to the other spouse for his or her support. It can be ordered in addition to child support depending on the need of the spouse seeking it and the ability of the spouse to pay it.  In 2012 Massachusetts adopted Alimony Guidelines.  In mediation, the couple will decide and agree whether to apply the guidelines or make their own decision about alimony. 

10.  Massachusetts is an "equitable distribution" state. That means that whether or not an asset is in an individual name or joint names is irrelevant in the first instance. All of your property, whether joint or individual, is considered marital property. If the parties cannot decide, the court will decide whether an assets should not be considered marital property and in what percentage to allocate the assets. The judge considers a series of factors such as age, health, vocational skills, income, contribution during the marriage, potential for future assets, etc. to determine whether the assets should be divided equally or in some other manner. In a long-term marriage where the assets have been accumulated by the couple over the years of the marriage, it is not uncommon for the court to divide the assets equally.

11.  If you have children and you are getting divorced, you must take a parent education class. You will not be able to obtain a hearing on your divorce unless you have both taken this class. The class is taken separately and consists of two 2-‡ hour sessions and currently costs $80.00 person. The class covers divorce and children, parenting dos and don'ts, and how to help children cope with divorce. Fee waivers are available.

12.  The fact that a case may initially be "contested" does not mean it will not settle. Over 95% of divorce cases settle. However, there may be a period of negotiation and conflict before the case ultimately is resolved through negotiation. If the case does not settle, then it will eventually be "marked up" (scheduled) for a divorce trial before a judge. A trial will involve the judge hearing testimony from witnesses (husband, wife, and any other relevant people) reviewing exhibits (documents such as tax returns) and ultimately deciding all aspects of the case. It is fair to say that a judgment made by a court will never be as precise and specific as a negotiated agreement. Some have likened it to conducting surgery with a hatchet versus using a scalpel.

13.  In most counties, there is a significant delay before you can obtain a trial date. You can usually assume that if your case is contested, you will not have a trial for at least one year from when you file. Then there can be a delay in getting the judge's decision.

14. Mediation is an alternative to the litigation process.  Mediation is a process wherein a neutral third party works with people to help them reach resolution on issues or conflicts that may exist between them. The term "mediation" encompasses various styles of mediation ranging from "transformative" to "directive." The varying styles often have to do with how much the mediator will interject or offer his or her own opinions to the parties. The role of the mediator is to facilitate a dialogue between the parties and to insure that they have sufficient information, legal, financial, etc. to make an informed decision and agreement.

15.  There are many advantages to mediation. The mediation process is usually far less expensive than litigation. The parties control the pace of the divorce rather than being guided by an arbitrary court process. Mediation tends to improve communication between couples rather than destroy it. Mediation allows couples to craft an agreement that is unique to their circumstances.

16.  If a couple decides to use mediation, when they reach an agreement,  the mediator will draft a Separation Agreement for them which they can eventually take to court and have the court approve. Even if the parties use mediation, they are encouraged to consult with their own individual attorney to discuss the terms of the proposed settlement from each of their individual perspective.

17.  There are other alternative dispute resolution systems in addition to mediation, such as arbitration, conciliation and collaborative law. Whether going through the divorce through the courts or through alternative dispute resolution, it is important to take care of yourself and keep yourself informed. There are many books about divorce and many which provide assistance on how to help your children cope with your divorce. If you have children, the biggest predictor for how your children will do in the long term is not who has custody or what the schedule is, but rather how well the parents work together. Consider therapy for yourself and your children. The more support you can get the better.