Frequently Asked Questions

What does a divorce cost?

Most family law practitioners charge an hourly rate for the services they provide. The attorneys often request an advanced payment called a retainer fee which is held in escrow for the client to be used by the lawyer as the case progresses.

The attorneys’ fees are based upon a number of factors directly related to the complexity of the case. Massachusetts law now allows lawyers to unbundle their services and provide limited appearance representation for those parties who wish to hire a lawyer for a specific purpose to handle one or a limited number of pieces of their case.

Can divorce judgments be modified?

Massachusetts allows parties to enter into modifiable and non-modifiable divorce agreements. Irrespective of the form, once parties divide property and debt payment responsibility, these issues cannot be modified.

Massachusetts law makes all issues relating to children modifiable.

A judgment of divorce may be modified where applicable upon a showing of a substantial and material change of circumstances.

Are Prenuptial agreements enforceable in Massachusetts?

Prenuptial agreements are enforceable under Massachusetts law. There are certain procedural requirements that must be followed by the parties when they enter into the agreement.  If the agreement is challenged at the time of the divorce, the court must evaluate the fairness of the agreement based upon certain factors.

Can a parent remove children from Massachusetts during or after divorce?

Massachusetts courts have established a precedent requiring that a real advantage be shown by the parent who requests that the child or children be taken by a custodial parent to permanently reside outside of the Commonwealth of Massachusetts.  The real advantage test also applies in cases where one party seeks to relocate the children within the Commonwealth to a location which is a considerable distance from the children’s original home.

Are all visitation plans and parenting plans the same?

Massachusetts courts have evolved over the recent years to provide fair consideration for each parent irrespective of gender in the parenting and care of minor children.  This evolution is a sharp contrast from the old notion that only one parent could care for a child without consequence.  Creative parenting plans are available to tailor most situations and parent employment schedules.

What is Custody?

Massachusetts considers two forms of custody.  Legal custody is the responsibility to make major life decisions for the child or children and physical custody is the day-to-day responsibility to care for the child or children.  Massachusetts law presumes that married parties who are able to communicate at some level will share legal custody.  Physical custody is not presumed to be shared and generally is awarded to one of the parties.

How is Alimony determined?

The Massachusetts alimony laws were amended in March 2012. The new alimony laws give parties, lawyers, and judges guidelines for the determination of alimony amounts, alimony durational term limits, and alimony termination grounds.

What about child support?

Massachusetts has set guidelines for child support which are assumed to apply in most traditional parenting arrangements where the children are under the age of eighteen and in certain circumstances apply where children are under the age of twenty-three.  Child support is a tax free and non-deductible payment from the payor to the recipient.  The Massachusetts child support guidelines are not absolute. Based upon the facts of the case, the child support may be modified to fit the situation.

How does the court divide property?

Massachusetts judges are required to divide property “equitably.” Equitable division does not necessarily mean equal division. However, there is a presumption that all property division begin with a consideration of an equal division. There are no set formulas for division of Massachusetts property.  All assets acquired during the marriage whether by gift, inheritance or through the parties’ employment are included in the marital estate.

The courts are required to consider a number of preset factors when equitably dividing marital property.  These factors include length of marriage; the cause for the dissolution of the marriage; parties’ age, health, lifestyle, occupation, amount and source of income, vocational skills, employability, estate, liability, needs of the parties, parties’ opportunity for future assets and income, contribution of the parties, needs of the children, and the contributions of the parties towards the daily needs of the family and children.  Based upon the criteria, the court may divide assets disparately and deviate from the presumption of an equal division.

Does a party have to prove fault on the part of the other spouse to obtain a divorce?

Massachusetts has no-fault and fault-based grounds for divorce.  Fault based grounds in Massachusetts are rarely used.  With no-fault grounds, either party may bring a complaint for divorce based upon the marriage being “irretrievably broken.”  If parties are unable to settle their divorce, the parties’ conduct is taken into consideration by the judge when a determination is made on the issues of alimony and property division.  Neither party can prevent the other from getting divorced if the complaint is based upon grounds of irretrievable breakdown.

If a case is settled out of court, must you still appear before a judge?

Once a divorce is settled, the parties and their attorneys must appear before a judge for an uncontested hearing.  The judge reviews the separation agreement and parties’ respective financial statements to ensure fairness and reasonableness of the agreement and further to confirm that the parties understood and voluntarily signed the separation agreement.

What percentage of cases are settled versus tried in the court?

The probate court system provides a number of procedures for parties to settle their case before trial.  These procedures have increased the settlement rate of divorces.  Approximately eighty percent of our divorces settle prior to the conclusion of a trial.

Does it matter who brings the divorce?

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Based on the current law, there is very little advantage or disadvantage to the spouse who brings the complaint for divorce or is the defendant in the complaint for divorce.  Some attorneys like to be in a position to bring the lawsuit because to a certain extent they may control the pace of the case.  If the case goes to a trial, the plaintiff tells his or her story first to the judge.  Some lawyers argue that “first impressions are lasting impressions.”

How long is the process of divorce?

Recent court rules have set a limit to the time frame in which parties must be divorced.  The current rules require that a divorce be completed within fourteen months.  It is common for the process to be completed in much less time depending on the complexity of the issues of the case.

How is the divorce process started?

A divorce is a lawsuit brought by one spouse against the other. The spouse that initiates the lawsuit is called the plaintiff while the other spouse is called the defendant. When both parties are in agreement with all issues of their case, they can file a joint petition for divorce also known as an uncontested divorce petition.