What is a ‘No Fault’ Divorce?
There are two types of Divorce in Massachusetts. By far the most common is a "No Fault Divorce." Under this avenue of divorce, one party simply claims that the marriage has "irretrievably broken down" and there exists no hope of reconciliation. Parties need not prove that one party is at fault or pin-point exactly why the marriage dissolved. All they need to state is that they no longer wish to be married to their spouse. The parties still must decide all issues involving child custody, parenting time, property division and alimony, or have a trial and have a court decide those issues. However, a No-Fault divorce provides a far more elegant means of ending a marriage without the morass of blame.
What is a Divorce for Cause?
The far less common type of divorce in Massachusetts is a Divorce for Cause. What that means is that one party is claiming that the other party did something that lead to the dissolution of the marital relationship. Under Massachusetts Law, there are seven types of for-cause divorce, 1) Adultery, 2) Impotence, 3) Desertion (must be at least one year), 4) Gross and confirmed habits of intoxication, 5) Cruel and Abusive Treatment, 6) Refusal or Neglect to Support and 7) Incarceration (must be for five years). Divorce for Cause has little advantage over a No-Fault Divorce, as it is usually harder to prove that the reason for the marriage's dissolution was the cause cited; it’s usually more expensive and there is a significant chance that the children of the marriage will be negatively impacted by the process.
What are Massachusetts’s alimony laws? Do I have an opportunity to amend my settlement and possibly end my alimony payments?
On September 27, 2011, then Governor Deval Patrick signed sweeping reform legislation into law which greatly alters the law pertaining to alimony once it becomes active in March 2012. These changes include remarriage of a spouse, the inclusion of child support in calculating alimony, the new types of alimony (transitional, rehabilitative, and reimbursement) along with the the more traditional "General Term Alimony," and yes, the end of presumptive, life-time alimony. In its place the state has set up various formulas to calculate when alimony may end. However, potential litigants should meet with an attorney to see if their Separation Agreement or Divorce Judgment qualifies for potential modification.
What is Child Custody? And what is the difference between legal and physical custody?
Legal custody is the right to make all decisions for the children, including schooling, medical care, religious observations, etc. Typically, absent extraordinary circumstances, both parties in a divorce will retain legal custody. Physical custody means only where the child lives most of the time. A parent who lives with the children most of the time is said to be the "custodial parent," and they retain physical custody of the children, while the parent who has scheduled parenting time is called the "non-custodial parent."
I am divorced, and my wife has physical custody of our son. Unfortunately, I have fallen behind on my child support payments and now my wife is not letting me visit with our son until I pay. Is she allowed to do this?
Absolutely not. Parenting time and the payment of child support are not connected, and one has no bearing on the other under Massachusetts law. While it is ideal and your obligation to meet your child support payments, a parent cannot, in effect, use their child as leverage to get the payments.
My spouse and I have agreed that our marriage is over. He says that his company can provide us with an attorney who will "take care of everything." I am skeptical. Should I get my own attorney or trust my spouse’s attorney?
Under no circumstances should you and your spouse ever use the same attorney. One attorney cannot represent both people. Some attorneys may oversee a "mediation" but you should still get your own attorney to represent you in any such process. While spouses will oftentimes assure their soon-to-be-ex that using one attorney will be "cheaper" or "less stressful" what they are attempting to do is dictate agreeable terms for the final divorce.
An attorney is someone who is there for you and only you to the exclusion of all others. You should have somebody there representing your spouse and their attorney whose sole mission is to fight for you and protect your interests.
What are my rights if my spouse is physically abusing me? My husband will often say to me that there is no way I can force him out of his own home. Is this true?
Under Massachusetts General Laws c. 209A, you have a right to request a Restraining Order be placed on your spouse. These are generally granted at an initial hearing if the complaining party can demonstrate a reasonable fear of eminent bodily harm with someone who is either a) someone who you are in or have been in a romantic relationship with, b) a member of your family, c) the biological parent of one of your children or d) someone who you share or have recently shared a residency with.
Under the statute if a judge finds that a person is in fear of eminent bodily harm, the judge can order the offender out of the home even if they have an ownership interest in the residency. In fact, a judge can even award temporary child support in a restraining order.
At a full hearing ten days after the initial hearing, the accused can defend him or herself from the accusations, but with good representation the victim can require that the accused remain under the Restraining Order for up to a year or potentially permanently.
Does the mother always win sole physical and legal custody of the children in a divorce?
Massachusetts law prohibits preference to a parent because of that parent's gender. Rather, if the parents cannot agree, the court decides based upon the best interest of the child, including consideration on which parent was the primary caregiver for the child during the marriage. Accordingly, there is no presumption in favor of granting custody to the mother.
I am divorced. My ex-husband has not paid his alimony in several months. What course of action can I take?
The Massachusetts Probate and Family Courts generally retain jurisdiction over what is referred to as "Post-Divorce Remedies," or issues that arise after your divorce has become final. If your ex-spouse is not living up to his or her obligations under either a Separation Agreement or a Judgment for Divorce than you can file what is called a "Complaint for Contempt" stating that your ex-spouse has failed to abide by an unambiguous order of the court. If this is the case a judge can rule in your favor not only for the back payments but in narrow circumstances can even award costs and reasonable attorney’s fees.