To end a marriage in the Commonwealth of Massachusetts, at least one party must file a divorce complaint in a Family and Probate Court, typically in the county where one or both parties reside. The divorce action addresses the division of the parties’ assets, custody of minor children, child support, and alimony if appropriate. Although most spouses file their divorces as contested actions, some spouses file uncontested actions when they agree. In the end, most parties settle their divorces without a trial. Only a tiny minority of divorces, probably less than 8%, are tried before a judge.
While a divorce often is years in the making, a contested divorce does not commence until one spouse files a divorce complaint and a constable or process server serves the complaint on the other spouse. That spouse then has 20 days to answer the complaint.
The decision to file for divorce has consequences.
First, upon the filing and service of the complaint, the law imposes an automatic restraining order prohibiting either spouse from selling, transferring, liquating, or otherwise disposing of assets belonging to or acquired by either party, except: (a) as required for reasonable living; (b) in the ordinary and usual course of business; (c) in the ordinary and usual course of investing; (d) for payment reasonable attorney’s fees and costs in connection with the divorce; (e) with a written agreement of both parties; or (f) by order of the court. Violation of this order could result in a contempt action.
Second, in alimony cases, the filing or service date of the complaint is critical. The law ties the duration of alimony payments to the length of a marriage, typically calculated by marriage date to the filing or service date of the divorce complaint.
Third, the parties have 45 days from the date of service of the complaint to exchange financial statements and comply with automatic discovery, which requires the production of certain documents. Not until a party satisfies these obligations is that party able to conduct additional discovery.
Which spouse files first has very little import except if there is a trial that spouse presents their case first. The service of the divorce complaint must be in person.
Generally, the court is not interested in bad conduct such as infidelity or addiction unless that conduct has resulted in the running down of the parties’ assets or interferes with taking care of the children.
Division of assets
The law divides marital assets equitably. Equitably does not always mean equally, and it depends on the following factors for the parties: length of the marriage, conduct of the parties during the marriage, age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties, opportunity of each for future acquisition of capital assets and income, and the amount and duration of alimony if any.
The presumption for married persons is that they have shared legal and physical custody of their children. Legal and physical custody are two different things, and there are several combinations. For example, a party could have shared legal custody and sole physical custody of a child.
Shared legal custody means both parents have rights concerning significant decisions for their children, such as those involving medical care, religion, education, or discipline. Sole custody means only one parent has that right.
Shared physical custody means both parents are providing a home to the children. The child has two homes, and there is a schedule between the two houses. Sole physical custody means one parent has the child most of the time, but the other parent may also have the child in their home subject to a schedule.
Parties are responsible for supporting their child. The amount of money a parent pays depends on a formula and the type of custody arrangement involved. The court may issue a child support order for the Department of Revenue (DOR), so the parent makes payment automatically. A parent may not agree to waive child support for any child. There are ways to structure an agreement to maximize the parties’ available funds.