1. How long does it take to finalize a divorce?
The length of time it takes for a divorce to be finalized depends on a number of factors: the issues involved; the parties' positions and willingness to compromise; the strategies taken by the parties' and their attorneys; and the court's schedule. In Massachusetts court time standards call for divorces to be concluded within 14-months. Most divorces are completed within that fourteen-month timeframe. Some may take longer due to the complexity of the issues and the amount of time it may take to try the case. Others may be settled in a much shorter time period.
2. I am planning on filing a divorce tomorrow, what should I expect?
Once a divorce is filed, the party who files will receive a Summons from the Court in the mail. The Summons needs to be served on the other spouse either by Sheriff, Constable or he or she may accept service by signing the Summons in the presence of a Notary Public. Typically, if there are children involved, the Plaintiff will file a Motion for Temporary Orders to be heard within the first 30 days after the filing.
At the Hearing for Temporary Orders the parties or counsel will negotiate and, frequently, come to an agreement to temporarily address the parties' obligations with respect to legal and physical custody, establishing a parenting schedule, support, use and occupancy of the marital home and deciding who will be responsible for the expenses of the marital home. The court will establish the next date for a return to court. Generally, the court issues a Pre-Trial Conference Notice setting forth a Pre-Trial Conference date approximately 6 months from the date you were in court on the Motion for Temporary Orders. If the case is not resolved at the Pre-Trial Conference, the court sets a Trial date. A Trial date can be as close as one month from the Pre-Trial date or as many as six months from that date depending on the Judge's calendar and complexity of the case. If the case is going to be tried over multiple days, it may get scheduled for a later date so that Trial dates can be assigned consecutively or nearly so.
3. What is the difference between litigation and mediation?
Litigation is the traditional manner of obtaining a divorce. In litigation, each party has an attorney, or are self-represented, and appear before the court as opposing parties. They present their case through evidence to the Judge who ultimately decides what the outcome of the case will be. In contrast, in mediation, the parties meet with the mediator ("neutral party") together. The mediator helps the parties reach a resolution that each of them is comfortable with. Typically, the parties share in the cost of a mediator in contrast of litigation where the parties each separately pay his or her own attorney. With mediation, it is always good practice, even if you reach an agreement, to have an attorney review it for its fairness and detail so that you understand exactly the terms of the mediated agreement.
4. 4. What is the difference between child support and alimony?
Child support is paid for the support of the children. In Massachusetts there are Child Support Guidelines that are presumed to apply in the context of a divorce, based upon the income of the parties. In addition to incomes, the formula takes into account their expenses with respect to health insurance, dental insurance, vision insurance and child care. It also takes into account the number of children. Child support is payable by the obligor after taxes have been deducted and is received by the recipient without any tax consequence to him or her.
Alimony is paid to support a spouse or former spouse. Alimony is not governed by a formula. In Massachusetts there are a number of formulas that have been proposed by Judge and various task forces. Neither the legislature nor the trial court has adopted any formula. In each case, alimony is based on the factual circumstances that exist between the parties. The court looks to the same factors it looks to in determining the division of marital assets. Those factors can be found in M.G.L. c. 208, § 34.
5. My spouse has been "harassing" me. I want to get a Restraining Order, what do I need to do?
Verbal harassment or name-calling is insufficient to get a "Restraining Order." In order for the court to issue a Restraining Order, the court must find that your spouse has attempted to cause you physical harm, caused you physical harm, placing you in fear of serious imminent physical harm or forced you to have sexual relations. Absent one of these events, the Court may not issue a Restraining Order. If something like that has happened and if it is during regular business hours are 8:30 to 5:00, you should go to the nearest District or Probate Court. You will prepare an Affidavit, which is a written statement under oath, describing what happened. You will go before a Judge and if the Judge grants the Restraining Order, you will be required to come back to court in approximately 10 days. The Court must give notice to your spouse that a Restraining Order has been issued. At the ten-day date, the Court will hear from each of you as to whether or not the Restraining Order should be continued. If you have a pending divorce, it may make more sense to go to the Probate Court where the divorce is pending. If the event that gives rise to your need to have a Restraining Order occurs after business hours are 8:30 to 5:00 or before business hours are 8:30 to 5:00, you may contact the local police who can be in contact with an "on-call" Judge. Judges are on-call 24 hours a day, seven days a week.
6. My husband and I have been fighting and we have each threatened to file for divorce. He claims that if I file for divorce he will quit his job and the kids and I will get nothing. What do I do?
It is impossible to tell you exactly what to do. If your marriage is getting to the point and you are certain that reconciliation is not possible, you may want to file for a divorce. Some people threaten to quit their job in the heat of the moment. In reality, very few actually do. Most people are dependent on the level of income that they are earning to live the lifestyle to which they have grown accustom. To give up their job will result in a change in their lifestyle and for most people this is unacceptable. If your spouse does voluntarily quit his job, the court has the ability to attribute income to him or her at the level he or she was earning when employment was voluntarily terminated. The court has the authority to treat the spouse as if he or she is generating that income and establish a child support obligation based on that income level.
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